Citation Nr: 1805920 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 09-02 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to benefits for squamous cell carcinoma originating in the right hand, pursuant to 38 U.S.C. § 1151. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The appellant served on a period of active duty for training (ACDUTRA) from February 1973 to March 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appeal was subsequently transferred to the RO in Buffalo, New York. In May 2012, March 2013, July 2013, and March 2016, the appeal was remanded to the RO for further development. See Stegall v. West, 11 Vet. App. 268, 271 (1998). It now returns to the Board for appellate review. In December 2008, the appellant requested a personal hearing before a Veterans Law Judge, sitting at the RO. The appellant was repeatedly scheduled for a hearing, but was unable to appear at any of the proposed times. Eventually, the appellant was scheduled for a hearing in April 2012 before a Veterans Law Judge via videoconference from the VA medical center (VAMC) in Albany, New York. The appellant appeared at the appointed time and place, but stated he did not wish to testify, which defeats the purpose of a hearing. 38 C.F.R. § 20.700(b). The appellant's actions in April 2012 constitute a withdrawal of his hearing request. At the hearing, the Veterans Law Judge clarified the issue on appeal and permitted the appellant's representative to make a statement for the record. This statement was transcribed and is associated with the claims file. The Veterans Law Judge who attempted to hold a hearing in April 2012, and who heard the representative's statement in April 2012, is no longer with the Board. Although the appellant did not actually testify at a Board hearing, in January 2016, a letter was sent to the appellant informing him of this fact and that he is entitled to an additional hearing before another Veterans Law Judge. The appellant did not respond to the letter. As such, the Board will proceed with the appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a) (2) (2012). FINDINGS OF FACT 1. From May 2003 through July 2003, the appellant was treated at a VA facility for a painful right index finger with a diagnosis of tinea unguium. 2. Subsequent to the VA treatment, private doctors diagnosed osteomyelitis in the right index finger, and after amputation of the fingertip, found invasive squamous cell carcinoma. 3. The preponderance of the competent and probative evidence of record demonstrates that the appellant's additional disabilities of squamous cell carcinoma of the finger and subsequent amputations were not incurred as a result of the VA treatment of the right index finger from May 2003 through July 2003, including was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA and the proximate cause of the disabilities was an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for squamous cell carcinoma originating in the right hand have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.361, 17.32 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), 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. The record reflects that there are outstanding private treatment notes from Capital Region Orthopaedic Group. The May 2012 remand directed that the appellant be requested to provide a properly executed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, for each private care provider who treated him for his right hand infection and carcinoma. Upon receipt of these forms, complete records, to include copies of pathology and laboratory reports, were to be obtained from the identified providers. However, records obtained from Capital Region Orthopaedic Group, received in September 2012, pertained to another person with the same first and last names as the appellant but a different birthdate. Consequently, the appeal was again remanded in March 2013, and the agency of original jurisdiction (AOJ) was directed to contact Capital Region Orthopaedic Group directly to obtain the correct records. Instead, the AOJ contacted the appellant for a new VA Form 21-4142, and in response he provided two pages of records from that facility. The Board remanded the appeal in July 2013 again with the instruction that the AOJ was to contact Capital Region Orthopaedic Group directly. In October 2013, the appellant's representative indicated that he had contacted Healthport, the custodian of the records sought in the July 2013 Board remand. The representative reported that Healthport had submitted the records to the Appeals Management Center on October 4, 2013 along with a red envelope to return the wrong patient's records. The representative stated that the case should not be decided until these records are received. Unfortunately, when the appeal returned to the Board in March 2016, the records from Capital Region Orthopaedic Group were still not in the claims folder. Therefore, the Board remanded the appeal and directed the AOJ to advise the appellant and his representative of the outstanding treatment records, to request that the appellant submit the records or another VA 21-2142 for the records, and then if the records are not obtained, to provide the appellant with notice of that fact that outlines all steps taken to obtain the records. Review of the post-remand record reveals that several attempts have been made to contact the appellant and that the correspondence to him regarding these records, as well as other VA documents, has been returned as undeliverable. The record reflects that the RO attempted to locate the appellant, but the most recent known address, last confirmed by a credit bureau in February 2017, was also invalid. Copies of all correspondence were also sent to the appellant's representative and the representative has not addressed the problems VA has had locating the appellant or further commented on the outstanding private treatment records. The appellant has a duty to keep VA apprised of his mailing address. See Hyson v. Brown, 5 Vet. App. 262 (1993) (holding that the burden is on the appellant to keep VA apprised of his or her whereabouts); see also Wood v. Derwinski, "[t]he duty to assist is not always a one-way street. If an appellant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." 1 Vet. App. 190, 193, reconsidered, 1 Vet. App. 406 (1991)). The law provides that, while VA is obligated to assist a claimant in the development of a claim, there is no duty on VA to prove the claim. Consequently, the Board determines that further remands and efforts to obtain the outstanding records from Capital Region Orthopaedic Group would be fruitless. Consequently, the Board finds that VA has satisfied its duty to assist the appellant in obtaining outstanding private treatment records. Accordingly, the Board will address the merits of the claim. II. Legal Criteria An appellant disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. 38 U.S.C. § 1151. An additional disability is a qualifying disability if: (1) it was not the result of the appellant's willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the appellant under any law administered by the VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C. § 1151(a). In determining whether an appellant has an additional disability, VA compares the appellant's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the appellant's condition after the care or treatment is rendered. The additional disability or death must not have been due to the appellant's failure to follow medical instructions. 38 C.F.R. § 3.361. To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Merely showing that an appellant received care, treatment, or examination and that the appellant has an additional disability or died 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 or properly treat the disease proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c). To satisfy the first prong of proximate causation, it must be shown that the VA hospital care, medical or surgical treatment, or examination caused the appellant's additional disability or death and that: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the appellant's or, in appropriate cases, the appellant's representative's informed consent. The second prong of proximate causation requires that the appellant's additional disability or death be an event that was not reasonably foreseeable. This fact is 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 the event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. III. Analysis In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The appellant is claiming entitlement to compensation under 38 U.S.C. § 1151 for the development of squamous cell carcinoma in the finger which has led to the amputation of portions of several of his fingers on the left and right hands. . Specifically, he contends that in treating his complaints of right index finger problems from May 2003 to July 2003, VA was negligent in not discovering and diagnosing squamous cell carcinoma in the finger. The appellant has undergone several amputations of portions of the digits of the left and right hands and reports that the cancer has metastasized to other areas. VA treatment records show that, in May 2003, the appellant presented with complaints of right index finger pain for two months. Tinea unguium, a fungal infection, was diagnosed. In July 2003, the appellant reported worsening of his condition, but he also stopped treatment at VA around that time. In August 2003, a new private doctor agreed with the diagnosis of a fungal infection, and referred the appellant for surgical removal of the infected fingernail. Imaging studies showed that the infection had spread to the bone (osteomyelitis); hence, amputation was required. The removed tissue was routinely analyzed, and squamous cell carcinoma was discovered. Doctors indicated at that time that the cancer had arisen at the site of the osteomyelitis and that the cancer developing so quickly was highly unusual under any known scenario. In 2005, carcinoma was discovered in the index finger and thumb of the left hand as well, and partial amputations were performed. An April 2012 letter from Dr. FDR reveals that the appellant has continued to have lesions of the extremities and that treatment is difficult from a clinical standpoint as some lesions are cancerous and some are not. Three VA opinions on this case have been received. A November 2008 VA examiner stated that the VA treatment notes were silent for treatment of the finger until July 2003, which is incorrect, and the examiner does not discuss any subsequent treatment for the appellant's fingers. Therefore, the opinion provided is based on an incomplete factual record, and the Board finds it inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The July 2012 VA examiner stated that there was no evidence of osteomyelitis when the appellant was seen by VA providers in May 2003 and that osteomyelitis takes time to develop. The examiner indicated that osteomyelitis can result from even a very minor break in the integrity of the skin despite appropriate care and treatment and so cannot be foreseen. Therefore, the examiner found that the development of osteomyelitis or deeper infection does not indicate negligence, lack of skill, error in judgment, or similar instance. As for the squamous cell carcinoma, the examiner stated that it was a microscopic diagnosis and not evident on visual inspection by any treatment providers, VA or private. The examiner concluded that the subsequent course of care for the appellant was not adversely affected by the initial care or treatment from VA healthcare providers. No contradictory medical opinions have been received. Further, an August 2003 treatment note by the appellant's oncologist states that the appellant's development of squamous cell carcinoma of the finger was very unusual and that the development of such disability would be unusual in any known scenario. Consequently, the Board finds that the proximate cause of the development of squamous cell carcinoma of the fingers and the resultant amputation of fingers was not carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, and was not an event not reasonably foreseeable. The preponderance of the evidence is against the appellant's claim of entitlement to benefits under 38 U.S.C. § 1151 for squamous cell carcinoma originating in the right hand, and the claim is denied. ORDER Entitlement to service connection for squamous cell carcinoma originating in the right hand, pursuant to 38 U.S.C. § 1151 is denied. ______________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs