Citation Nr: 1806634 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-22 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to compensation for residuals of VA nasal surgery under 38 U.S.C. § 1151. 2. Entitlement to service connection for sleep apnea, to include as secondary to residuals of VA nasal surgery. REPRESENTATION Veteran represented by: Maryland Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to August 1968. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Board notes that additional evidence has been associated with the claims file following the most recent supplemental statement of the case (SSOC), and that the Veteran has not waived consideration of that evidence by the Agency of Original Jurisdiction (AOJ). To the extent the additional evidence was submitted by the Veteran, no formal waiver of AOJ consideration is required, as the Veteran's substantive appeal was received after February 2, 2013, and he has not expressly requested initial evidentiary review by the AOJ. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7015 (e)(1) to provide an automatic waiver of initial AOJ review of evidence at the time of or subsequent to the submission of a substantive appeal where the substantive appeal is filed on or after February 2, 2013). The issue of entitlement to service connection for sleep apnea, to include as secondary to residuals of VA nasal surgery under 38 U.S.C. § 1151is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The competent evidence of record fails to show that the Veteran's sinus disability, including breathing problems, was caused by VA nasal surgery. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for residuals of VA nasal surgery are not met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §3.361 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he is entitled to compensation for a sinus disability due to an improperly performed nasal surgery performed by the VA in June 1973. Specifically, although the Veteran acknowledges that the nasal surgery, which was intended to correct a nasal fracture, was unrelated to service, he contends that the nasal surgery caused him to have breathing problems later in life. 38 U.S.C. § 1151 is VA's medical malpractice statute, which compensates claimants who suffer "qualifying additional disability" as a result of surgical, or other medical, treatment administered by VA. Such benefits are to be awarded in the same manner as if the "additional disability . . . were service-connected." See 38 U.S.C. § 1151 (a); see also Roberson v. Shinseki, 607 F.3d 809, 813 (Fed. Cir. 2010). The current provisions of 38 U.S.C. § 1151 make clear that compensation may only be awarded for a "qualifying additional disability" that 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 treatment, or by an event not reasonably foreseeable. The specific requirements of 38 U.S.C. § 1151 and its implementing regulations were addressed in a precedential decision by the United States Court of Appeals for the Federal Circuit (Federal Circuit). Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013). Specifically, the Federal Circuit incorporated those provisions into a three-part test, whereby 1) a claimant must incur an additional disability that was not the result of his or her own willful misconduct; 2) the disability must have been caused by hospital care, medical or surgical treatment, or examination furnished by VA or in a VA facility; and 3) the proximate cause of the additional disability must be carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. Id. at 1377. With respect to the first part of the Viegas test, VA determines whether a qualifying additional disability exists by comparing a claimant's condition immediately prior to undergoing medical or surgical treatment to his condition after such care has ceased. 38 C.F.R. § 3.361 (b). The claimant then bears the burden of meeting the remaining parts of the test. To prevail under the second Viegas element, the claimant must demonstrate a "causal connection' between his qualifying additional disability and the medical care that he received through VA. Merely showing that an additional disability arose in the wake of VA medical care is insufficient to establish such a connection. 38 C.F.R. § 3.361 (c). Nevertheless, the Federal Circuit has emphasized that the claimant's injury does not have to be "directly" caused by the actual "provision" of medical care by VA personnel but, rather; may also be caused when an injury occurs in a VA facility because of VA negligence. See Viegas, 705 F.3d at 1378. To prevail under the third and final Viegas element, the claimant must demonstrate that his qualifying additional disability was proximately caused by VA's failure to exercise the degree of care expected of a reasonable health care provider, or to furnish the hospital care, medical treatment, or surgery, without his informed consent; or by an event not reasonably foreseeable. Whether the proximate cause of a veteran's additional disability 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 disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361 (d)(2). In making all determinations, the Board must fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). After review of the record, the Board finds that compensation under 38 U.S.C. § 1151 for residuals of nasal surgery is not warranted as the evidence of record fails to show that the Veteran sustained additional disability due to medical treatment provided by VA. In addressing the first Viegas element, the medical evidence of record dated prior to the surgery performed on June 20, 1973 includes a Report of Medical History dated in December 1966 which documents that the Veteran had a history of sinusitis. His service treatment records (STRs) also document that he complained of nasal congestion and sore throat in July 1967. In the years following the June 20, 1973 surgery, the Veteran's post-service treatment records document that he sought treatment for sinus infections and sinusitis. Specifically, in a January 2014 private treatment record, the Veteran complained of recurrent nasal congestion with yellow nasal drainage and a recurrent cough. In a November 2015 private treatment record, the Veteran complained of nasal congestion, sinus pain, postnasal drip, hoarseness, sore throat, nasal drainage, and a cough productive of yellowish/dark brown sputum. Turning to the remaining Viegas elements, the evidence of record includes a March 2016 VA opinion in which the examiner opined that that the VA met the standard of care and that the VA surgery did not cause the Veteran's current symptoms. The examiner reasoned that the appropriate procedure for a nasal fracture is reduction of the fracture and that is the procedure that was performed. The examiner further reasoned that the secondary scar and deformity that developed were directly related to the nasal fracture/trauma. The Board remanded the Veteran's claim in August 2016 to obtain an additional VA opinion which included a discussion of whether the June 1973 surgery resulted in the Veteran having additional disability and whether any additional disability was an event not reasonably foreseeable. As a result, a January 2017 report of VA Sinusitis, Rhinitis, and Other Conditions of the Nose, Throat, Larynx and Pharynx examination was associated with the claims file. The January 2017 VA examiner opined that the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, the examiner did not discuss the Viegas elements as instructed in the August 2016 remand. The Board subsequently requested an Independent Medical Expert (IME) opinion in March 2017 in which the examiner opined that there was less than a 50 percent likelihood that the Veteran's claimed disability was caused by or became worse as a result of the June 20, 1973 surgery. The examiner reasoned that sinusitis was documented in the Veteran's November 1965 enlistment examination; he was likely exposed to formaldehyde as a pathology technician in 1972 based on his educational record; and he was exposed to chlorine gas and black flack while on active duty. The examiner further opined that there was less than a 50 percent probability that any claimed additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of attending VA personnel, or an event not reasonably foreseeable. The examiner reasoned that both surgical procedures were performed appropriately and that there was a lack of any evidence in the entire Veteran's claims folder for carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The examiner further reasoned that permanent nasal obstruction and sinusitis are possible/foreseeable consequences of a closed reduction of a nasal fracture, but this is not due to carelessness, negligence, lack of skill, or similar incidence of fault on the part of attending personnel. As the IME examiner's opinion was based on review of the claims file and included a rationale for the conclusion reached, the Board finds this opinion to be highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In sum, the competent evidence of record does not show that the Veteran has an additional sinus disability as a result of VA nasal surgery rendered in June 1973. The Board has considered both the private and VA medical evidence of record from before and following the June 1973 surgery; but the competent evidence does not indicate a link between the Veteran's sinus disability, to include sinusitis and breathing problems, and treatment rendered by VA during that time. The Board acknowledges the Veteran's assertion that his sinusitis/breathing problems resulted from the nasal surgery. However, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007)(noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of the Veteran's sinus disability requires medical testing and expertise to determine. Accordingly, his opinion as to the diagnosis and etiology of his sinus disability is not competent medical evidence, and the Board finds the medical evidence of record to be significantly more probative than the Veteran's lay assertions. Therefore, compensation under 38 U.S.C. § 1151 for residuals of VA nasal surgery is not warranted and the claim must be denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Compensation under 38 U.S.C. § 1151 for the residuals of VA nasal surgery is denied. REMAND Although the Board regrets the additional delay, further development is necessary prior to the adjudication of the issue of entitlement to service connection for sleep apnea, to include as secondary to residuals of VA nasal surgery under 38 U.S.C. § 1151. The Veteran is seeking service connection for sleep apnea. Specifically, he contends that he has sleep apnea related to an in service event in which he inhaled black flack after a powerful blast from a 02 level gun mount. Alternately, he contends that he has sleep apnea secondary to residuals of a June 1973 VA nasal surgery. A review of the evidence of record confirms that the Veteran has been diagnosed with sleep apnea. See December 2009 and November 2010 Private Medical Records. However, in the above decision, the Board denied entitlement to compensation under 38 U.S.C. § 1151 for residuals of VA nasal surgery. Therefore there is no legal basis for granting compensation for sleep apnea on a secondary basis. See 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.310 (2017). With regard to the Veteran's claim for sleep apnea on a direct basis, the STRs document that the Veteran complained of congestion, sore throat, and dry throat in service. In light of the Veteran's reporting of an in-service injury; the evidence of in-service complaint of congestion, sore throat and dry throat; and the diagnosis of sleep apnea, the Board finds that a VA examination should be provided and an etiological opinion should be obtained on remand. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Schedule the Veteran, if necessary, for a VA examination to determine the nature, etiology, and date of onset of the Veteran's sleep apnea. The claims file should be made available to the examiner and review of the file should be noted in the requested report. The examiner should record the full history of the identified disability, including the Veteran's competent account of his symptoms. Following review of the claims file and examination of the Veteran, the examiner should respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that the diagnosed sleep apnea had its onset during active service, or within one year of the Veteran's separation from active service in August 1968, or is otherwise related to service? The examiner is asked to specifically discuss the Veteran's complaint of congestion, sore throat, and dry throat in his STRs. The examiner is also asked to discuss the Veteran's contention that he inhaled black flat and coughed up black mucus from his lungs for several weeks to a month after a powerful blast from a 02 level gun mount. If it is not possible to provide an opinion without resort to speculation, the reason that is so should explained, indicating whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 3. Readjudicate the claim on appeal. If the benefits requested on appeal are not granted in full, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs