Citation Nr: 19143457 Decision Date: 06/06/19 Archive Date: 06/05/19 DOCKET NO. 16-22 674 DATE: June 6, 2019 ORDER Entitlement to compensation under 38 U.S.C. 1151 for esophageal cancer, for accrued benefits purposes, is denied. FINDING OF FACT The Veteran's esophageal cancer was not proximately due to or the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing reasonable care. CONCLUSION OF LAW The criteria for compensation benefits pursuant to 38 U.S.C. § 1151 for esophageal cancer, for accrued benefit purposes, have not been met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from April 1970 to December 1971. The Veteran died in May 2004. The appellant seeks benefits as his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2018 and a transcript of the proceeding has been associated with the record. Entitlement to compensation under 38 U.S.C. 1151 for esophageal cancer, for accrued benefits purposes. As an initial matter, the Board notes that the question of entitlement to compensation under 38 U.S.C. 1151 on appeal was adjudicated in the context of a claim for accrued benefits, i.e., benefits as may have been due and unpaid at the time of the Veteran’s death. Notably, entitlement to compensation under section 1151, was previously considered and decided by the Board in May 2011, in the context of a claim for dependency and indemnity compensation benefits; i.e., benefits based on service connection for the cause of the Veteran’s death, to include under 38 U.S.C. 1151. The appellant here has simply sought consideration of her entitlement to benefits under 38 U.S.C. 1151 by recharacterizing her approach to them. The decision below relies on the same evidence and controlling legal authority regarding entitlement under section 1151, as the May 2011 decision. Nevertheless, this decision is a product of a de novo review of the record. Accrued benefits are periodic monetary benefits, other than insurance and servicemen's indemnity, to which an individual was entitled at death under existing ratings or decisions and under laws administered by VA, or those based on evidence in the file at date of death and due and unpaid, that shall, upon the death of such individual, be paid to the surviving spouse or other appropriate party. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000. Generally, claims for accrued benefits must be adjudicated based on evidence that was physically present or constructively present in a veteran's claims folder when he died. 38 U.S.C. § 5121(a); see also Hyatt v. Shinseki, 566 F.3d 1364 (2009). Specifically, in a claim for accrued benefits, the Board is prohibited from considering medical evidence received after the date of the veteran's death. There is an exception for outstanding service treatment records or VA treatment records, as they are considered to be in the constructive possession of VA at the time of death. 38 U.S.C. § 5121(a); 38 C.F.R. § 3.1000(a), (d)(4); Hayes v. Brown, 4 Vet. App. 353, 360-61 (1993). The appellant contends compensation under the provisions of 38 U.S.C. 1151 for VA treatment, or lack thereof, of esophageal cancer is warranted, on the view that precautionary measures should have been taken as far back as 1995 or 1996 when the Veteran first received medical care for gastric distress as opposed to waiting until 2003 for a biopsy to reveal malignancy. See November 2018 Board hearing transcript. Under the applicable criteria, compensation under 38 U.S.C. § 1151 shall be awarded for a veteran's qualifying additional disability in the same manner as if such additional disability was service connected. A qualifying disability is one which is not the result of a veteran's willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished him or her under any law administered by VA, and the proximate cause of the disability was (A) 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 (B) an event not reasonably foreseeable. 38 U.S.C. § 1151 (a). To determine whether a veteran has an additional disability, VA compares the condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the condition after such care, treatment, or examination. VA considers each involved body part separately. 38 C.F.R. § 3.361 (b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability. Merely showing that the 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). 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 the 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). 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). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 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 proximately caused a veteran's additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused the additional disability (as explained in 38 C.F.R. § 3.361 (c)); and VA (i) failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, his representative's informed consent. 38 C.F.R. § 3.361 (d)(1). 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). After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran esophageal cancer 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 the hospital care, medical or surgical treatment, or that it was proximately caused by an event not reasonably foreseeable. There is no evidence showing that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. In coming to this conclusion, the Board notes that the record remains substantially unchanged since the May 2011 denial of entitlement. Notably, in the appellant’s November 2018 testimony she conceded that no positive medical opinion had been associated with the record nor did she or her representative identify any significant evidence in support of the claim outside of generalized beliefs. See November 2018 Board hearing transcript (“the VA opinion that we have is from a VA examiner. Unfortunately, we don't have an outside opinion…we feel the evidence will show that she is entitled to an 1151 claim for negligence on the part of the VA medical care”). The most probative evidence of record is the sole medical opinion from July 2010. In the report the VA examiner concluded that VA did not fail to exercise the degree of care that would be expected of a reasonable health care provider in regard to the Veteran's gastrointestinal treatment. Following a detailed review of the Veteran’s medical history from his 1995 upper gastrointestinal treatment through to his biopsy and eventual cancer diagnosis, the examiner explained the reasoning behind the VA’s actions regarding the gastrointestinal complaints and found active management of all the risk factors. Given the reasoned negative opinion offered by the VA physician in July 2010 which relied on consideration of both the Veteran's medical history and current medical understanding of the condition, the Board finds that this examiner's opinion is sufficient to decide this claim. Importantly, this opinion is not contradicted by any probative evidence of record. Although the appellant currently states that the VA physicians failed to provide treatment that the Veteran needed and that the delay caused the misdiagnosis of the Veteran's esophageal cancer, the evidence of record does not support these contentions. Other than the lay assertions, the evidence of record does not reflect that the Veteran's cancer was proximately caused by a delay in treatment. The Board has considered these statements, but note that while appellant is competent to provide testimony or statements relating to symptoms or facts of events that they observed and within the realm of their personal knowledge, they are not competent to establish that which would require specialized knowledge or training, such as the medical expertise necessary to pontificate on the reasonableness of preventative cancer treatment. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the issues in this case are outside the realm of common knowledge of a lay person because they involve complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). It has been contended that the VA physicians delayed proper treatment of the Veteran and that the delay in treatment, in effect, led to the inoperable nature of the Veteran's cancer; however, as the statements are not supported by competent evidence (opinion evidence by an expert) of record, the statements are given no probative value. In sum, the Board concludes that the preponderance of evidence is against a finding that the timing of VA treatment caused additional disability. The probative competent medical evidence does not show that the Veteran's esophageal cancer was materially worsened because of treatment or any contended delay in treatment. Importantly, and contrary to the lay contentions, the VA examiner concluded that that there was no improper medical care by the VAMC. In the absence of competent evidence that demonstrates additional disability caused by VA, the Board concludes that the greater weight of the evidence is against the claim for entitlement to compensation under 38 U.S.C. § 1151 is not warranted for accrued benefits purposes. Thus, under these circumstances, the claim for compensation under the provisions of 38 U.S.C. § 1151 for accrued benefits purposes must be denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Marcus J. Colicelli The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.