Citation Nr: 18145298 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 15-31 509A DATE: October 26, 2018 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for malignant brain tumor, glioblastoma, to include due to failure to timely diagnose, is denied. FINDING OF FACT The evidence is against a finding that the Veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered by VA related to the Veteran’s malignant brain tumor, glioblastoma. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for malignant brain tumor, glioblastoma, as due to VA treatment, have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.102, 3.361, 17.32 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1990 to April 1993. The Veteran died in July 2016. The appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. 1. Entitlement to Compensation Under 38 U.S.C. § 1151 The appellant contends that the Atlanta VAMC was negligent and failed to timely diagnose and treat the Veteran’s glioblastoma brain tumor. As such, the appellant contends that the Veteran incurred additional disability as a result of VA’s failure to timely diagnose the Veteran’s glioblastoma. See Notice of Disagreement, received August 2015. Under VA laws and regulations, when a veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death was service connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. A veteran may be entitled to benefits under 38 U.S.C. § 1151 if VA failed to timely diagnose or properly treat a disability, thereby causing increased disability or death. The continuance or natural progression, that is, worsening, of a disease or injury may be the basis of eligibility under 38 U.S.C. § 1151, only if it is attributable to VA’s failure to timely diagnose and properly treat the disease or injury. 38 C.F.R. § 3.361 (c) (2). The elements necessary to support a claim under section 1151 based on failure to diagnose or treat a preexisting condition ordinarily requires a determination that: (1) VA failed to diagnose and/or treat a 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. See VAOPGCPREC 5-2001 (Feb. 5, 2001); see also Roberson v. Shinseki, 607 F.3d 809, 814-17 (Fed. Cir. 2010). The medical evidence of record shows that in May 2014 the Veteran requested an appointment for an annual check-up. The Veteran stated he needed medication refilled and that he wanted to talk to someone about anxiety/nervousness. The Veteran did not state that he had symptoms relating to a neurological disorder. The Veteran was provided an annual check-up on June 2, 2014. The Veteran’s chief complaints were fasting, anxiety, and the need to refill medication. The Veteran did not complain about symptoms relating to a neurological disorder. On August 22, 2014, the Veteran requested another VA appointment. The Veteran stated that he wanted to “get some blood work done to make sure all of my labs are good, since I have been suffering some weird symptoms lately; extreme fatigue all day long, muscle weakness.” The Veteran was provided the requested medical tests on August 27, 2014, at the Blairsville CBOC. During the examination, the Veteran stated that he has “overwhelming fatigue, I shut down in the afternoon, My L side is weak also.” The Veteran further reported changes in strength and endurance, difficulty articulating, tongue muscle slowed, and frequent, fleeting episodes of fasciculation in arms, back, and legs. The VA medical provider noted diminished strength in arms and legs. Private treatment records reflect that the Veteran went to the emergency room on September 5, 2014. An MRI revealed the glioblastoma and the Veteran underwent tumor debulking on September 9, 2014. A November 2014 VA general inquiry reflects that the appellant contacted VA and stated that at the end of August the Veteran went to VA with problems with the left side of his body and cognitive ability. The appellant stated that the Veteran was tested for Lyme disease and the physician was concerned about signs of ALS. The appellant further stated that the Veteran’s symptoms were neurological and that the Veteran should have been sent for a CT scan. In response, the August 2014 medical provider stated, “I believe now that I should have sent [the Veteran] to the local hospital that day.” In an April 2015 correspondence the Veteran stated that in the first week of September 2014 his symptoms drastically worsened so he went to the emergency room where he was provided a CT scan. The CT scan revealed a mass on his brain and he was provided an emergency craniotomy and tumor resection on September 9, 2014. The Veteran stated that he reported neurological symptoms, including anxiety, left side weakness, and other unexplained neurological symptoms to the Blairsville COBC in July 2014. The Veteran further stated that the Blairsville CBOC and the Decatur VAMC were negligent in delaying diagnostics and that the normal standard of care in his symptom presentation were not followed. Additionally, the Veteran stated that the September 2014 surgery removed approximately 89 percent of the tumor and had VA diagnosed the Veteran earlier, the tumor would have been smaller in size and more of it could have been removed. A June 2015 Review Form for § 1151 Claim reflects that the reviewer noted VA committed carelessness, negligence, lack of proper skill and error in judgment in furnishing hospital care, medical or surgical treatment or examination that contributed to or resulted in injury, illness, or death. The reviewer further noted that the carelessness, negligence, lack of proper skill, and error in judgment did not lead to an event not reasonably foreseeable. As rationale, the reviewer noted that the health care provider stated that the Veteran should have been sent to a local hospital for evaluation. The reviewer opined that the delay in the Veteran’s diagnosis did not make or would have made any significant change in the Veteran’s outcome but a CT or MRI of the brain should have been arranged on August 27, 2014. The Veteran’s file was reviewed in July 2015 by a VA physician. The physician noted the relevant medical evidence of record and opined that it is less likely than not that the Veteran’s glioblastoma multiform tumor was caused by VA treatment. As rationale, the VA physician stated that there is no evidence that VA treatment caused the Veteran to develop glioblastoma. The VA physician further opined that it is less likely than not that the thirteen-day delay in tumor diagnosis resulted in a change in the outcome of the Veteran’s condition. As rationale, the VA physician stated that there was a short thirteen-day delay in diagnosis and treatment initiation and that during this period the Veteran’s symptoms worsened, which is consistent with progression of his tumorous condition. However, the VA physician stated that the actual, quantifiable magnitude of the tumor and the resulting treatment impact is not determinable. Therefore, the VA examiner opined that the delay less likely than not is responsible for any significant change in overall outcome. The VA physician further opined that the August 27, 2014, VA treatment contained judgement error but no improper skill, carelessness, negligence or other fault on the part of VA. As rationale, the VA physician stated that the decision-making should have included the recognition of the need for prompt intracranial imaging and/or consultation. Finally, the VA physician opined that the Veteran’s brain tumor condition could reasonably have been foreseen as a different diagnostic entity at the time of the August 27, 2014, VA consultation by a reasonable healthcare provider. As rationale, the VA physician stated that such foreseeability is an essential component in the decision-making process. In April 2016, the Veteran was provided an independent medical opinion from an associate professor at the Department of Radiation Oncology at the VCU Massey Cancer Center. The professor opined that the Veteran does not have additional disability due to VA’s failure to diagnose and treat the presenting symptoms of his glioblastoma. As rationale, the professor stated that after reviewing the entire record, there was no evidence that a VA clinician was aware of the Veteran’s neurological symptoms that were related to his glioblastoma before August 27, 2014. The professor further stated that the Veteran’s tumor was resected thirteen days later, on September 9, 2014, and that this short time interval to resection represents an expeditious delivery of care. The professor further stated that while the medical decisions made by VA on August 27, 2014, including the omission of emergent head imaging that day, raises concerns about clinical judgment, the Veteran ultimately did not have delay in care. Additionally, the professor stated that it is highly unlikely that the two-week delay in care from presentation to surgery had a detrimental impact on the Veteran’s long-term prognosis. The professor also addressed the Veteran’s contention that had VA diagnosed his tumor earlier it would have been smaller and more of it could have been removed. The professor opined that this would not have been the case. As rationale, the professor stated that tumor biology is more prognostic than a few extra days of untreated growth, and the evidence that supports a benefit with gross total resection as opposed to subtotal resection are not definitive. The professor concluded that there was no evidence to suggest any additional disability emerged due to VA’s failure to make a diagnosis in a timely manner. Based upon the foregoing, the Board finds that the weight of the evidence of record demonstrates that the Veteran’s glioblastoma was not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA health care providers. 38 U.S.C. § 1151; 38 C.F.R. § 19.5. Specifically, the Veteran’s claim was reviewed by three different physicians. All three opined that the Veteran should have been provided a CT scan or MRI on August 27, 2014. The July 2015 reviewer also opined that a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment. However, all three reviewers opined that the Veteran did not suffer disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered on August 27, 2014. As such, the third element necessary to support a claim under section 1151 based on failure to diagnose or treat a preexisting condition has not been met. The Board acknowledges that the Veteran and appellant are competent to describe symptoms that they are able to perceive through the use of their senses and to give evidence about what the Veteran experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). In that regard, the Veteran has asserted that his glioblastoma worsened as the result of VA treatment, or lack thereof. However, as a lay person, and under the facts of a case that involves questions of the onset and progression of cancer, specific signs and testing for cancer, and the standards of testing for cancer, the Veteran and the appellant have not been shown to have the requisite medical knowledge or expertise to be deemed competent to determine whether the proper standard of care was provided. In this regard, such an inquiry is medically complex in nature, and there is no indication that the Veteran nor the appellant has the requisite training or knowledge to offer such an opinion. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). Therefore, such statements are afforded no probative weight. For these reasons, the Board finds that a preponderance of the evidence is against a finding that the Veteran suffered a disability or death which would have been avoided if proper diagnosis and treatment had been rendered on August 27, 2014. In reaching the above determination, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant’s claim that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).   VA’s Duty to Notify and Assist With respect to the appellant’s claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel