Citation Nr: 20022447 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 20-03 658 DATE: March 31, 2020 ORDER Entitlement to VA benefits under 38 U.S.C. § 1151 for an additional disability manifested by neck mass, diagnosed as a submandibular lipoma and multinodular goiter, as a result of medication prescribed by a medical professional at a Department of Veteran’s Affairs (VA) medical facility associated with the Tennessee Valley Healthcare System from October 2010 to February 2011, is denied. REMANDED Entitlement to VA benefits under 38 U.S.C. § 1151 for an additional respiratory disability, claimed as chronic obstructive pulmonary disease (COPD), as a result of medication prescribed by a medical professional at a VA medical facility associated with the Tennessee Valley Healthcare System from October 2010 to February 2011, is remanded. FINDING OF FACT The most probative evidence reflects that the Veteran’s submandibular lipoma and multinodular goiter were not caused by medical care furnished at a VA medical facility associated with the Tennessee Valley Healthcare System from October 2010 to February 2011. CONCLUSION OF LAW The criteria for compensation pursuant to 38 U.S.C. § 1151 for an additional disability manifested by neck mass, diagnosed as a submandibular lipoma and multinodular goiter, as a result of medication prescribed by a medical professional at a VA medical facility associated with the Tennessee Valley Healthcare System from October 2010 to February 2011, have not been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1982 to August 1984. He also had additional service of an unverified nature and duration in the Army Reserves. This matter comes to the Board of Veterans' Appeals (Board) from an April 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. The Board notes that the Veteran has a separate appeal stream that he has opted to continue under the under the provisions of the Appeals Modernization Act (AMA). As such, those appealed issues will be addressed by the Board under a separate cover and will be discussed no further at this time. 1. Entitlement to VA benefits under 38 U.S.C. § 1151 for an additional disability manifested by neck mass, diagnosed as a submandibular lipoma and multinodular goiter, as a result of medication prescribed by a medical professional at a VA medical facility associated with the Tennessee Valley Healthcare System from October 2010 to February 2011 A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability in the same manner as if such additional disability were service-connected if the additional disability was not the result of willful misconduct and 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 that treatment, or an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(A), (B) (2012); 38 C.F.R. § 3.361(a)-(d) (2018); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). First, there must be evidence of additional disability, as shown by comparing the veteran’s condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). To determine whether a veteran has an additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran’s condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the veteran’s willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.301(c)(3). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or CWT program furnished the veteran by VA. 38 C.F.R. § 3.361(c). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. Merely showing that a 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). The Federal Circuit has held that the causation element of section 1151 is satisfied not only when an injury is “directly” or “actually” caused by the actions of VA employees, but also where an injury occurs in a VA facility resulting from VA’s negligence. Viegas, 705 F.3d at 1378. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease of 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). The factual elements necessary to support a claim under section 1151 based on failure to diagnose or treat a preexisting condition may vary with the facts of each case and the nature of the particular injury and cause alleged by the claimant. As a general matter, however, entitlement to benefits based on such claims would ordinarily require a determination that: (1) VA failed to diagnose and/or treat a preexisting 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. Vet. Aff. Op. Gen. Couns. Prec. 5-2001 (Feb. 5, 2001); see also Roberson v. Shinseki, 607 F.3d 809, 817 (Fed. Cir. 2010). Moreover, 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). Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be: (1) 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 (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). Regarding carelessness or negligence, 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 was the proximate cause of a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the 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. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361 (d)(1). Regarding reasonable foreseeability, 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. 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 foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2017). Thus, section 1151 contains two causation elements – a veteran’s disability must not only be caused by the hospital care or medical treatment he or she received from VA, but also must be proximately caused by the VA’s fault or an unforeseen event. 38 U.S.C. § 1151(a)(1). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran contends that he developed a disability manifested by swelling of the neck and face, diagnosed as a submandibular lipoma and multinodular goiter, as the result of a VA medical professional’s prescription for Lisinopril. He alleges that he is entitled to compensation for these disabilities under 38 U.S.C. § 1151 because the VA medical professional’s Lisinopril prescription was negligent, careless, and/or reckless, and/or the additional disabilities were unforeseeable side effects of such. By way of history, after seeking VA treatment for symptoms associated with hypertension, a VA medical professional prescribed the Veteran Lisinopril for management of hypertensive vascular disease. Soon thereafter, the Veteran reported pain and swelling in the left side of his neck and face. Testing completed in February 2011 revealed a submandibular lipoma and multinodular goiter, accounting for the Veteran’s reported symptoms. Less than a week after these test results were reported, the Veteran’s VA prescription for Lisinopril was discontinued. These facts are not in dispute. The threshold questions before the Board are (1) whether the Veteran’s submandibular lipoma and multinodular goiter are additional disabilities of the purpose of VA compensation under 38 U.S.C. § 1151, and if so, (2) whether such disabilities the result of VA treatment. If causation of any additional disability is found, it must be determined whether such is the result of VA’s negligence, carelessness, or unforeseeable event. The Board observes that the Veteran’s submandibular lipoma and multinodular goiter were initially diagnosed in February 2011. There is no indication in the file that the Veteran experienced symptoms congruent with these diagnosed disabilities prior to being prescribed Lisinopril by a VA medical professional in October 2010. As such, a submandibular lipoma and multinodular goiter will be accepted as additional disabilities for the purpose of analyzing the Veteran’s appeal seeking benefits under the provisions of 38 U.S.C. § 1151. In light of above, the next question to be addressed is whether there is a causal relationship between either disability the medical treatment furnished at a VA medical facility associated with the Tennessee Valley Healthcare System from October 2010 to February 2011. The only medical evidence addressing this matter is an opinion from a May 2019 VA examiner, who stated that there is no evidence of a causal relationship between Lisinopril development of either a submandibular lipoma or multinodular goiter. In support of this opinion, the May 2019 VA examiner noted that there was no overlap between the known causes of these disabilities and the known side effects of Lisinopril. It is important to note that the provisions of 38 U.S.C. § 1151 require that the VA treatment actually caused the additional disability – not that the additional disability merely came into existence chronologically at the time of or after the treatment. The Board finds this medical opinion highly probative, and the only medical evidence to the contrary stems from the Veteran. While the Board notes his lay assertions concerning medical causation, such lack credibility due to his lack of medical training and experience to support such an opinion. As such, the Board finds that the most probative evidence of record reflects that the Veteran did not incur an additional disability as a result of medical treatment furnished at a VA medical facility associated with the Tennessee Valley Healthcare System from October 2010 to February 2011. Regrettably, as such, the Veteran's claim for compensation under 38 U.S.C. § 1151 for an additional disability manifested by neck mass, diagnosed as a submandibular lipoma and multinodular goiter, cannot succeed, and the matters of negligence, carelessness, and foreseeability are moot. As the preponderance of the evidence is against the claim, there is no doubt to be otherwise resolved, and the appeal must be denied. REASONS FOR REMAND 1. Entitlement to VA benefits under 38 U.S.C. § 1151 for an additional respiratory disability, claimed as COPD, as a result of the medication prescribed by a medical professional at a VA medical facility associated with the Tennessee Valley Healthcare System from October 2010 to February 2011 For the reasons expressed below, the Board concludes that a remand is necessary to obtain medical opinions addressing medical matters under 38 U.S.C. § 1151 that are beyond the Board’s purview. The most probative evidence, to include the documented side effects of Lisinopril and the opinion of the May 2019 VA examiner, note a causal relationship between the medical and several respiratory symptoms and related disabilities. While the May 2019 VA examiner opined that the VA medical professional’s prescription of Lisinopril from October 2010 to February 2011 was not negligent, careless, or reckless, the foreseeability of the Veteran’s resulting additional respiratory symptoms and disability was not addressed. To that extent, the May 2019 VA opinion regarding this issue is inadequate, and a remand is necessary to obtain a medical opinion which addresses this critical matter. The matters are REMANDED for the following actions: 1. The AOJ must transfer the Veteran’s complete VA file, to include a copy of this remand, to the VA clinician who completed the May 2019 VA examination. After a review of the complete file, the VA clinician is requested to address the following: Were the Veteran’s respiratory symptoms and disabilities noted after the October 2010 to February 2011 prescription of Lisinopril (noted as a sore throat, coughing, bronchitis/COPD) at least as likely as not the result of an event that was not reasonably foreseeable? Essentially, the Board is asking if a reasonable health care provider would have considered the additional disability to be an ordinary risk of the prescription of Lisinopril from October 2010 to February 2011. *In addressing the above, the examiner is asked to specifically address the relationship, if any, between the Veteran’s COPD diagnosis (discussed in 2011 and formally diagnosed in 2017) and the prescription of Lisinopril from October 2010 to February 2011. The examiner should provide a complete rationale for all opinions rendered. The examiner should specifically discuss the pertinent evidence of record, to include the Veteran's assertions described in this remand. If the examiner finds that he or she cannot provide any opinion without resorting to speculation, the examiner must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. *If the clinician who provided the May 2019 VA opinion is unavailable, the Veteran should be scheduled for a VA examination by an appropriate VA medical professional, and the Veteran should be notified of the time and place to report for such. After a review of the complete record and examination of the Veteran, is VA clinician is requested to address the above matters. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, Counsel 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.