Citation Nr: 1815273	
Decision Date: 03/12/18    Archive Date: 03/19/18

DOCKET NO.  16-24 626A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES


1. Entitlement to compensation under 38 U.S.C.A. § 1151 for bone cancer.

2. Entitlement to compensation under 38 U.S.C.A. § 1151 for partial colon removal.


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs


ATTORNEY FOR THE BOARD

J. Baker, Associate Counsel



INTRODUCTION

The Veteran had active service from November 1958 to November 1960.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.  These matters were previously before the Board in August 2017, when they were remanded for further development.  The matters now return to the Board for appellate consideration.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The most probative evidence of record shows that the Veteran's additional disability of bone cancer is not the result of VA treatment or care.

2.  The most probative evidence of record shows that the Veteran's additional disability of partial colon removal is not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, and was not the result of an event not reasonably foreseeable.


CONCLUSIONS OF LAW

1.  The criteria for entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 for additional disability characterized as bone cancer, claimed to be the result of treatment at a VA medical facility, are not met.  38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.358, 3.361 (2017).

2.  The criteria for entitlement to benefits under the provisions of 38 U.S.C.A. § 1151 for additional disability characterized as partial colon removal, claimed to be the result of treatment at a VA medical facility, are not met.  38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.358, 3.361 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duty to Notify and Assist

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).  

Legal Criteria

When a veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by VA, disability compensation shall be awarded in the same manner as if such disability or death was service connected.  38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2017).  The law requires not only that the VA treatment in question resulted in additional disability but also that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the treatment, or that the proximate cause of the additional disability was an event not reasonably foreseeable.

In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment.  38 C.F.R. § 3.361(b).  To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability.  Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause.  38 C.F.R. § 3.361(c)(1).  Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or 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).

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, it must be shown that the hospital care or medical or surgical treatment 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 or medical or surgical treatment without the veteran's informed consent.  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.  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.  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).

When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2017).

Analysis

The Veteran contends that he was treated for lung cancer in 2013 at VA medical centers.  He contends that following that treatment, he developed terminal bone cancer.  The Veteran's contentions imply a deficiency in the standard of care and in identifying the spread to his bone.  The Veteran also suggested in his Notice of Disagreement that an earlier course of chemotherapy would have prevented his current condition.  Further, he contends that in 2013 he had a colonoscopy followed by a removal of polyps at a VA medical center.  The Veteran followed up with a private provider, and had removal of another polyp that had a hemoclip left on it, followed by eventual partial colon removal.  The record supports the claimed treatment by the VA with regard to the dates and locations described by the Veteran.  The record supports the presence of additional disabilities of bone cancer and partial colon removal.  

Initially, the Board notes that the questions on appeal involve complex medical issues, including the appropriate treatment for cancer and colon polyps and prevailing standards of care.  The Veteran, as a lay person, is competent to report past and current symptoms that are readily observable through the senses, such as pain.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  However, he has not been shown to possess the medical expertise or knowledge required to address the complex medical issues in question in the present case.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Therefore, his statements do not constitute competent evidence that he has experienced additional disability due to fault on the part of VA or due to an event not reasonably foreseeable.

With regard to whether the Veteran's bone cancer was directly caused by VA treatment, the VA provided a medical opinion in March 2016.  A VA oncologist's review of the record found that it was not more likely than not that the Veteran's bone cancer was caused as a result of the VA treatment at issue.  The examiner outlined the Veteran's course of treatment by the VA, including right upper lobe wedge resection from a VA facility in October 2013.  Scans from July 2013 had found no metastases, thus there was not suspicion of distant metastases to the bone.  The examiner indicated that the proper procedure was followed for observation for stage 1 lung adenocarcinoma.  June 2014 scans showed no local or distant recurrence, and an April 2015 scan found some evidence of local recurrence and a suspicious right sacral lesion, followed by proper treatment.  The examiner did not see evidence that the right sacral lesion was malignant, and stated that without the biopsy, it had nothing to do with the prior surgery and follow up plan.  The examiner stated that the treatment by the Indianapolis and Danville VA did not allow the disease or disability to continue to progress.  

A subsequent opinion in September 2017 indicated that there was no benefit to adjuvant chemotherapy or radiation therapy in the setting of the stage 1A lung adenocarcinoma, and that the standard of care was post-operative observation.  The examiner noted that there is a suggestion of increased risk of death for chemotherapy related to stage 1A disease.  The recommended course following surgery is a chest scan every 6 months for 2 to 3 years.  The abnormal imaging from March 2015 showed the sacral lesion, and a subsequent biopsy revealed metastatic adenocarcinoma.  The Veteran was referred for radiation of the sacral lesion as it was the only site of disease.  The Veteran was noted to have had a disease free interval until March or May of 2016 until recurrence was found. The examiner ultimately opined that the Veteran's lung cancer metastatic to bone is not more likely than not related to the Veteran's VA care.  The examiner clarified that this is to say that there is a less than 50 percent probability that his condition is related to VA care.  The examiner provided rationale that the Veteran's initial stage 1A lung adenocarcinoma was appropriately staged and managed according to NCCN guidelines.  The examiner stated there was no radiographic evidence of metastatic disease and that he was appropriately referred for resection.  The post-operative treatment and follow up were also noted to be appropriate.  The examiner noted that 30 to 40 percent of patients will have a recurrence, a majority of which are distant, with a median time of recurrence in 13 months.  The examiner stated that the recurrence was related to the natural progression of the Veteran's disease, as it was consistent with the typical patient profile.  The examiner further noted that after the sacral scan found a lesion, follow up was appropriate including biopsy and radiation.  A November 2017 addendum further clarified that the examiner believed the Veteran's bone cancer was not due to VA treatment.  

The Board affords great probative weight to the findings of the September 2017 VA opinion and November 2017 addendum.  The examiner applied his medical expertise in analyzing the appropriate standard of care, and finding that that standard of care was met.  Further, the examiner explained that radiation treatment for the initial stage 1A cancer was not appropriate and could have made the problem worse.  Further, the examiner explained that the Veteran's current disability was a potentially expected outcome.  The Board finds that the most probative evidence of record does not show a delay or deficiency in the Veteran's treatment or that VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress of the Veteran's cancer.  Thus, the Board finds that there is no direct causation between the Veteran's VA treatment and his current bone cancer.  Therefore, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and entitlement to disability compensation for a bone cancer, pursuant to the provisions of 38 U.S.C.A. § 1151, is not warranted.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).

With regard to the Veteran's partial colon removal, a March 2016 VA opinion stated that it was not more likely than not that the Veteran's partial colon resection was caused by or became worse as a result of VA treatment.  The examiner also indicated that there was a less than 50 percent probability that the claimed disability was due to carelessness, negligence, lack of skill, or fault of the VA, and that there was no evidence of deviation from the standard of care.  The examiner opined that the timing of the Veteran's scopes and follow up treatment was appropriate and that leaving a hemoclip is part of the standard of care, as they will fall off.  The examiner noted that imaging confirms that the initial polyp was completely removed in July 2013, and proper follow up occurred 1 year later, indicating a deteriorating condition.  A provider from September 2014 determined that a colonoscopy was needed.  A November 2014 scope was performed on follow up and found a 4cm polyp with the hemoclip that had been previously and correctly placed.  The hemoclip was placed to reduce bleeding and close defects after the original removal.  The examiner stated that the hemoclip has no relevance to the claimed condition.  After obtaining results of the scope, the polyp was biopsied and partial resection was recommended.  

An August 2017 VA addendum opinion indicated that the level of care the Veteran received was optimal.  The opinion notes an attempt to remove the polyp in January 2015, but that the lesion was not amenable to lifting.  Because there was indication that the polyp could contain cancerous material, colectomy was recommended.  The examiner did opine that the removal of the Veteran's polyp was caused by VA care, insofar as it was the optimal care of his premalignant polyp.  However, the examiner indicated that it was not at least as likely as not that the partial colon removal was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instances of fault by the VA in providing treatment to the Veteran.  Further, the examiner opined that the Veteran's additional disability of partial colon resection was foreseeable, since it was the proper recommended course of treatment.  The examiner also indicated that the need for a partial colectomy would have been discussed by the surgeon and disclosed as part of the informed consent discussion prior to surgery.  

The Board affords great probative weight to the VA opinions of record.  The VA provider applied medical expertise in determining that the Veteran's partial colon removal was not a function of failure to adhere to the standard of care, and that the Veteran's VA treatment for initial removal, and leaving a hemoclip were proper standard of care.  The provider also indicated that the timeline between surgery and follow up was appropriate.  The most probative evidence of record indicates that the Veteran's additional disability was due to VA treatment insofar as they performed the partial colon removal, but that the proximate cause of the additional disability was not was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the treatment, or an event not reasonably foreseeable.  Therefore, the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and entitlement to disability compensation for a partial colon removal, pursuant to the provisions of 38 U.S.C.A. § 1151, is not warranted.  See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 3.303, 3.304; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).




ORDER

Entitlement to compensation under 38 U.S.C.A. § 1151 for bone cancer is denied.

Entitlement to compensation under 38 U.S.C.A. § 1151 for partial colon removal is denied.




____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs