Citation Nr: 1756066 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 12-04 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for additional respiratory disability as the result of surgery performed by VA on January 4, 2010. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Postek, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to April 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A hearing was held before the undersigned Veterans Law Judge at the RO in July 2015. A transcript of the hearing is of record. The Board remanded the case for further development in January 2016. That development was completed, and the case has since been returned to the Board for appellate review. The Board also notes that the Veteran submitted a timely notice of disagreement (NOD) with a November 2015 rating decision regarding a brain aneurysm claim. See December 2015 NOD. However, the Veterans Appeals Control and Locator System (VACOLS) shows that the RO has acknowledged receipt of that NOD and is processing that appeal. Therefore, a remand for the issuance of a statement of the case (SOC) is not required at this time. See Manlincon v. West, 12 Vet. App. 238 (1999) (finding that if an NOD remains unprocessed, a remand is required for issuance of an SOC). This appeal was processed using the Veterans Benefits Management System (VBMS). FINDING OF FACT The Veteran does not have any additional respiratory disability as a result of surgery performed by VA on January 4, 2010. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for additional respiratory disability as the result of surgery performed by VA on January 4, 2010, have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board finds that VA's duty to assist has been met as to obtaining post-service records. In response to the Board's January 2016 remand, the agency of original jurisdiction (AOJ) made attempts to obtain additional documents based on the Veteran's report that he filed a claim under the Federal Tort Claims Act (FTCA) based on the same events that are the subject of the section 1151 claim; however, there was no record of such a claim after the AOJ contacted the appropriate entity in this regard. Moreover, the Veteran has not otherwise identified or submitted copies of any outstanding records, including any FTCA claim documents, pertinent to the claim decided herein. See March 2016 and October 2016 correspondence; May 2016 response from VA General Counsel. Therefore, all identified and available post-service medical records have been obtained in relation to this claim. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Law and Analysis A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability in the same manner as if such additional disability were service-connected if the additional disability was not the result of willful misconduct and was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing that treatment, or an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(A), (B) (2012); 38 C.F.R. § 3.361(a)-(d) (2017); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). First, there must be evidence of additional disability, as shown by comparing the veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). 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 (CWT) 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 or system separately. The additional disability must not be the result of the veteran's willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.301(c)(3). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or CWT program furnished the veteran by VA. 38 C.F.R. § 3.361(c). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). The Federal Circuit has held that the causation element of section 1151 is satisfied not only when an injury is "directly" or "actually" caused by the actions of VA employees, but also where an injury occurs in a VA facility resulting from VA's negligence. Viegas, 705 F.3d at 1378. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease of 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). The factual elements necessary to support a claim under section 1151 based on failure to diagnose or treat a preexisting condition may vary with the facts of each case and the nature of the particular injury and cause alleged by the claimant. As a general matter, however, entitlement to benefits based on such claims would ordinarily require a determination that: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. Vet. Aff. Op. Gen. Couns. Prec. 5-2001 (Feb. 5, 2001); see also Roberson v. Shinseki, 607 F.3d 809, 817 (Fed. Cir. 2010). Moreover, additional disability 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)(3). Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be: (1) 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 (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). 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 was the proximate cause of 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; 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 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. 38 C.F.R. § 3.361(d)(1). Regarding reasonable foreseeability, 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 foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). Thus, section 1151 contains two causation elements - a veteran's disability must not only be caused by the hospital care or medical treatment he or she received from VA, but also must be proximately caused by the VA's fault or an unforeseen event. 38 U.S.C. § 1151(a)(1). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that compensation under 38 U.S.C. § 1151 for additional respiratory disability as the result of surgery performed by VA on January 4, 2010, is not warranted. The Veteran has contended that he developed additional respiratory disability as the result of surgery performed by VA on January 4, 2010. Specifically, he has stated that he underwent VA surgery on his right upper lung lobe for the purposes of removing a cancerous tumor. However, upon performing the surgery, VA medical personnel discovered that he did not have a cancerous tumor, but had a necrotizing granuloma (an area of inflammation in which tissue has died) due to a mycobacterial infection instead. A lobectomy was performed to remove the right upper lung lobe. The Veteran has maintained that he only provided consent for VA to remove the necrotizing granuloma and not the right upper lung lobe. The Veteran has also contended that his additional disability was the unnecessary removal of the right upper lung lobe, which caused breathing problems. He has indicated that he developed shortness of breath, pain and burning in the right upper lobe, and resulting impairment in physical activities after the surgery. He testified that he does not believe that he has chronic obstructive pulmonary disease (COPD), but that his VA treatment providers have told him that he has this disorder from smoking and have placed him on respiratory medications, including Albuterol. He subsequently testified that his VA treatment providers told him that he developed COPD after the surgery. In addition, the Veteran has contended that VA medical personnel were negligent in actually removing the right upper lung lobe, inasmuch as a reasonable alternative to surgery would have been a biopsy on the necrotizing granuloma or treatment with radiation or medication. He has also contended that VA incorrectly assumed prior to the surgery that the mass in his lungs was a cancerous tumor. See February 2010 claim and February 2012 substantive appeal (reported having severe breathing disorder with reduced lung capacity caused by removal of lobe in his lung); July 2015 Bd. Hrg. Tr. The medical evidence includes VA pre-operative, operative, and post-operative treatment records dated from 2009 to 2016, including a signed December 2009 VA informed consent form; a July 2010 VA medical opinion; and a September 2016 VA examination report and medical opinion. The Veteran also submitted a June 2010 written statement from his sister-in-law (D.F.) as to her observations about the Veteran following the surgery; she reported that she had been a registered nurse for 35 years. Around the time of his surgery, it was noted that Veteran had a greater than 40-year history of tobacco use. See, e.g., November 2009 VA pulmonary consultation note. Prior to the surgery, a May 2009 VA chest x-ray shows an impression of lung changes suggesting COPD. A May 2009 VA emergency room note shows that the Veteran reported having sharp, continuous chest pain for two days while doing strenuous work under a house, but he did not have any breathing problems. His VA active medication list at that time included an Albuterol inhaler that was used four times a day as needed for breathing. A November 2009 x-ray report shows that there was a new finding of a medial right apical opacity, as well as a finding of a reticulonodular pattern of interstitial lung disease. It was noted that a follow-up was needed because the new finding indicated a possible malignancy. A November 2009 VA chest CT scan also revealed emphysematous lung changes. It was again noted that a follow-up was needed because other findings indicated a possible malignancy. See Mayo Clinic, "Emphysema" (noting that emphysema (a lung condition that causes shortness of breath) and chronic bronchitis are two conditions that make up COPD) https://www.mayoclinic.org/diseases-conditions/emphysema/symptoms-causes/syc-20355555 (reviewed November 2017). A VA pulmonary consultation note from later that same month shows no respiratory complaints and indicates that the corresponding pulmonary function test (PFT) results were interpreted as showing supernormal spirometric and lung volume values with a moderate reduction of diffusion capacity. The PFT report itself shows an interpretation of a moderate airflow obstruction and moderate gas exchange deficit, with normal lung volumes. It was noted that the Veteran was given four puffs of an Albuterol metered-dose inhaler (MDI) as a bronchodilator. It was also noted that the spirometry showed a moderate obstructive ventilatory defect with no improvement post-bronchodilators and that the diffusing capacity was moderately reduced. The findings of a December 2009 VA PET scan show that the Veteran was found to have a large, partially necrotic pulmonary mass consistent with malignancy, probably representing a Pancoast tumor. A December 2009 VA thoracic consultation shows that the Veteran's PFTs were noted to be very adequate. Based on the findings of the PET scan and the Veteran's noted concern that the mass could be malignant, an exploratory thoracotomy was planned for January 2010. VA surgical and immediate post-surgical reports from January 2010 indicate that the Veteran had a necrotizing granuloma due to a mycobacterial infection. The January 2010 VA discharge summary shows an assessment including PET positive right upper lung mass suspicious for cancer, COPD, and tobacco use disorder. It was noted that the Veteran was on Albuterol at that time and that he had a past medical history including COPD and tobacco use disorder. The pathology report shows that there was no evidence of malignancy. Following the surgery, January 2010 and February 2010 VA treatment records, x-rays, and CT scans show the Veteran's reports of shortness of breath, dyspnea on exertion, "crunching sounds" at the surgical site, "burning" of the upper right lobe, and right-sided pleuritic chest pain. A January 2010 VA thoracic surgery note shows that the Veteran's persistent shortness of breath should improve. A March 2010 pulmonary consultation note shows that the Veteran reported ongoing dyspnea and constant pain in the surgical site; he was given PFTs that day as well. The assessment was Mycobacterium avium-intracellulare infection (MAI) infection and mild to moderate COPD, with the PFTs showing mild to moderate obstructive impairment. It was noted that the Veteran's dyspnea was partly due to his VA lung surgery, but also due to COPD, and he was started on Formoterol and Combivent. See also, e.g., September 2016 VA examination report (noted Veteran's use of intermittent inhalation bronchodilator therapy and inhalation anti-inflammatory medication for COPD). A June 2010 chest CT shows an impression including mild to moderate centrilobular emphysema with interstitial fibrosis. See September 2016 VA examination report. A July 2010 VA pain consultation was positive for shortness of breath and right anterior chest pain. The Veteran reported that he was able to do basic activities of daily living, but that he had a deterioration of pulmonary function inhibiting his physical activity, including his lawn maintenance job. It was noted that he was using oxygen (O2) via a nasal cannula. The assessment was post-thoracotomy pain, which was noted to be not uncommon - mixed neuropathic and somatic. A corresponding chest CT scan shows an impression including COPD with bronchiectatic changes with bilateral pleural effusions and bibasilar consolidations, left greater than right. In this case, the record shows that the Veteran reported that he developed shortness of breath and pain and burning in the right upper lobe and that he experienced impairment in physical activities after the surgery. The record also shows that the Veteran has been treated for COPD with respiratory medications. However, the most probative evidence shows that the Veteran does not have additional respiratory disability as a result of that surgery; the Veteran's symptoms from immediately after the surgery resolved, and his post-surgical decrease in pulmonary function is related to at least one factor other than the surgery. Regarding the claimed unnecessary removal of the right upper lung lobe (rather than just the necrotizing granuloma) causing additional breathing problems, the December 2009 signed informed consent form shows that the recommended procedure was an exploratory right thoracotomy for a wedge resection and possible lobectomy to see if there were problems or injuries within the chest area/to establish the source of symptoms and the presence or status of disease based on the finding of a right upper lobe mass. In other words, the information on the informed consent form shows that the VA treatment providers planned for the possibility that the removal of the entire lobe of the lung may be necessary to evaluate for possible disease and provided the Veteran with that information prior to the surgery. See Mayo Clinic, "Lung cancer" (defining a wedge resection as the removal of a small section of lung that contains the tumor along with a margin of healthy tissue and a lobectomy as removal of the entire lobe of one lung) https://www.mayoclinic.org/diseases-conditions/lung-cancer/basics/treatment/con-20025531 (reviewed November 2017); see also Bd. Hrg. Tr. at 8-11(Veteran testified that VA treatment provider told him that he would be removing the mass as a preventative measure, as opposed to possibly removing it depending on what was seen during the procedure). The September 2016 VA examiner also indicated that there was no additional disability following the surgery, referencing the portion of the operative report explaining that an attempt at a wedge resection of the right upper lobe mass was made, but was difficult to maintain given the location of the lesion, and that the lobectomy was accordingly carried out because of the suspicious nature of the PET positive mass. The examiner confirmed that the mass was tested for pathology. Moreover, as discussed above, multiple VA treatment providers also confirmed the suspicious nature of the mass in the pre-operative testing. Based on the foregoing, it cannot be said that the removal of the right upper lobe alone (rather than just the necrotizing granuloma) constitutes additional disability. Indeed, it was a known possibility that the removal of the entire lobe of the lung may occur during the surgery and was part of the surgical plan. As such, the surgery itself did not cause the lobectomy. Regarding the post-surgical respiratory symptoms and resulting impairment, as well as the ongoing treatment for COPD, the record as discussed above shows that the Veteran had COPD and some reduced lung function. He was also found to need an inhaler prior to the surgery, even if he did not use it at that time. The September 2016 VA examiner determined that the Veteran had COPD that impacted his ability to perform heavy exertion and that he did not have additional respiratory disability following the January 2010 surgery. In so finding, the examiner considered the results from the November 2009 and March 2010 PFTs, as well as April 2013 PFTs, and noted that the Forced Expiratory Volume in one second (FEV-1)/Forced Vital Capacity (FVC) measurement, the test result that most accurately reflected the Veteran's level of disability, had improved post-operatively. The examiner also determined that the reduction in the FEV-1 measurement was due to expected progression of COPD in a 45+ year smoker who continued to smoke. See also 38 C.F.R. § 4.97, Diagnostic Code 6604 (COPD rating criteria, including consideration of above measurements to evaluate pulmonary function). The September 2016 VA examiner's findings are consistent with the VA treatment records, which show that the Veteran continued to smoke, and that he had pre-surgical COPD that continued to progress after the surgery. See, e.g., May 2009 VA chest x-ray (report of changes suggesting mild degree of COPD); November 2009 VA x-ray report (reticulonodular pattern of interstitial lung disease); November 2009 VA PFT report (spirometry showed a moderate obstructive ventilatory defect with no improvement post-bronchodilators and moderately reduced diffusing capacity); March 2010 VA pulmonary consultation (assessment including mild to moderate COPD); June 2010 VA chest CT (impression including mild to moderate centrilobular emphysema with interstitial fibrosis); see also, e.g., VA treatment records from April 2013 (one pack/day smoker for 50 years) and February 2014 (1.5 pack/day smoker for over 40 years, reported stopped smoking since open heart surgery month prior). In reaching the opinion as to the claimed additional respiratory disability, the September 2016 VA examiner performed an examination of the Veteran and reviewed the evidence in the claims file, including the Veteran's treatment records and his contentions. In reading the opinion as a whole and in the context of the evidence of record, the Board finds that the VA examiner's determination, which addresses the central medical issues in this case, was based on an analysis of the evidence and current medical understanding, and is therefore entitled to probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (providing that an examination is not rendered inadequate where the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion,"); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (stating that medical reports must be read as a whole and in the context of the evidence of record). The July 2010 VA examiner determined that it was less likely as not that the Veteran had additional disability after the surgery; however, the examiner did not address the Veteran's reported symptoms documented in the VA treatment records following the surgery. On the other hand, VA treatment providers have indicated that the Veteran has respiratory problems that are multifactorial. Following the March 2010 VA pulmonary consultation, the assessment reflected that the Veteran was dyspneic, partly due to the right upper lobe resection, but also due to COPD. Nevertheless, later treatment records show that the Veteran's reported post-surgical breathing problems and chest pain from immediately after the surgery had resolved. See, e.g., VA treatment records from October 2010 (reported dyspnea on exertion with limited activity, wears oxygen, and chest pain); December 7, 2010 (reported use of oxygen as needed, needed over the past couple of days after being exposed to grandchild who had a respiratory infection and everyone in house got sick and right-sided chest pain for three days associated with that acute illness); December 28, 2010 (home oxygen evaluation consultation that determined Veteran no longer met criteria for home oxygen); March 2011 (noted social history of gardening and carpentry work); May 2012 and December 2013 (reported symptoms including chest pain that started several days prior, associated with acute bronchitis). A January 2014 VA neurology consultation note also shows that the Veteran was admitted for near syncopal symptoms including lightheadedness, chest pain, and shortness of breath. A VA cardiology consultation note from the following day shows that, prior to his syncopal episode, the Veteran had no symptoms; he was very active and owned a lawn service where he pushed lawnmowers and climbed ladders trimming palm trees on a daily basis without any distress. An addendum to that note shows that the Veteran was a heavy smoker with a positive family history for coronary artery disease (CAD) and that he reported that his symptoms started the prior Sunday, with pain on the right side of his chest and then shortness of breath and lightheadedness. A February 2014 VA cardiology follow-up note shows that the Veteran had undergone open heart surgery the month prior and that his postoperative course was remarkable for hypoxia for which he was discharged with home oxygen that he still needed. It was noted that the Veteran had the lung surgery a few years ago and had been a smoker, but that he claimed he had not smoked since the heart surgery. It was also noted that the Veteran's main question was when he could go back to work; he had a lawn maintenance business and also trimmed trees and did odd jobs. The impression included a finding of respiratory insufficiency, multifactorial, secondary to open heart surgery, as well as COPD and prior partial pneumonectomy. Thereafter, the Veteran was found to no longer meet the criteria for home oxygen. See March 2014 VA treatment record (home oxygen evaluation consultation with plan to discontinue oxygen; discussed with patient with good reception); see also, e.g., VA treatment records from February 2014 (reported chest pain after being hit with car door then falling on chest and chronic shortness of breath since recent heart surgery only); May 2014 (continued to report being very active); November 2014, May 2015, and November 2015 (revealed no shortness of breath, no chest pain, and no respiratory distress) and June 2016 (denied chest pain, dyspnea on exertion (DOE), and shortness of breath). The Board acknowledges the June 2010 written submission from D.F. describing the new respiratory difficulties and decreased physical activity she observed in him following the surgery. Similarly, the Board acknowledges the March 2010 and February 2014 determinations from the VA treatment providers attributing the Veteran's respiratory problems in part to the right upper lobectomy; however, the treatment records as discussed above show that the Veteran's breathing difficulties that developed immediately following the surgery resolved. The March 2010 determination and the June 2010 written submission were shortly after the surgery, and as such, do not discuss those subsequent records. In addition, the February 2014 determination does not address the Veteran's pre-operative respiratory status, or the treatment records following the January 2010 surgery. Based on the foregoing, the Board finds that the opinions of D.F., the July 2010 VA examiner and the VA treatment providers are of limited probative value on this issue. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Black v. Brown, 5 Vet. App. 177, 180 (1993) (an opinion based on an inaccurate (or unsubstantiated) factual premise has limited, if any, probative value) and Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). In summary, the most probative evidence (including consideration of the lay statements as discussed below) shows that, although the Veteran has been shown to have respiratory disability following the January 2010 VA surgery, the evidence does not establish that any additional disability was caused by the surgery. He had additional symptoms from the surgery that resolved, and his pre-surgical COPD associated with his smoking progressed following the surgery. If the Board finds that there is no "actual causation," it is unnecessary to address the next step of proximate causation (i.e., negligence and reasonable foreseeability). That is, because the evidence of record does not demonstrate additional respiratory disability caused by VA treatment, examination, or surgery, the analysis need not advance to the question of proximate cause, including negligence and reasonable foreseeability. Mangham v. Shinseki, 23 Vet. App. 284, 287-88 (2009); Loving v. Nicholson, 19 Vet. App. 96, 99-100 (2005); see also 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). The Board has considered the Veteran statements and finds that he is competent to report as to observable symptomatology, such as difficulty breathing and pain, as well as information that his treatment providers have told him. However, as to the questions of whether the Veteran actually has COPD and additional disability for purposes of entitlement to section 1151 benefits, even assuming that he is competent to opine on these medical matters, the Board finds that the September 2016 VA examiner's opinion is more probative, as it was provided by a medical professional with knowledge, training, and expertise and is supported by rationale based on such knowledge. The VA examiner also reviewed the claims file and considered the Veteran's reported history and lay statements, and his opinion is consistent with the treatment records. Based on the foregoing, the Board finds that the criteria for entitlement to compensation under 38 U.S.C. § 1151 for additional respiratory disability as the result of surgery performed by VA on January 4, 2010, have not been met, and the weight of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53. ORDER Entitlement to compensation under 38 U.S.C. § 1151 for additional respiratory disability as the result of surgery performed by VA on January 4, 2010, is denied. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs