Citation Nr: 21000013 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 15-00 496A DATE: January 4, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for liver cancer is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the VA failed to timely diagnose the Veteran’s liver cancer because the evidence fails to demonstrate that the VA reasonably should have diagnosed the Veteran with liver cancer prior to 2016. CONCLUSION OF LAW The criteria for entitlement to benefits under 38 U.S.C. § 1151 for liver cancer have not been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1969 to October 1970. He passed away in May 2017. The appellant is his surviving spouse who has been substituted in the Veteran’s claims for accrued benefits under 38 U.S.C. § 1151. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The matter last appeared before the Board in January 2020 at which time the issue was remanded for further development. Entitlement to compensation under 38 U.S.C. § 1151 claim for liver cancer is denied. The Veteran filed a claim for compensation under 38 U.S.C. § 1151 in December 2016. Sadly, the Veteran passed in May 2017. The immediate cause of death listed on his death certificate is liver cancer and other significant conditions contributing to death but not resulting in the underlying causes is listed as cirrhosis of the liver and Parkinson’s disease. The appellant, having been substituted in the Veteran’s claim, contends that a liver mass was discovered in the Veteran which turned out to be two different types of cancers. She contends that VA missed diagnosing the cancers, even though the Veteran had an elevated liver count. (As a side note, the Board notes that while the claim before the Board is the Veteran’s claim under 38 U.S.C. § 1151 that was pending at the time of the Veteran’s death, a claim for dependency and indemnity compensation (DIC) pursuant to 38 U.S.C. § 1151 for the death of a Veteran is also one that can be filed.) 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, compensation under 38 U.S.C. § 1151 shall be awarded for a qualifying additional disability or qualifying death of a Veteran in the same manner as if that additional disability or death were 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 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). Thus, the issue in this case is whether VA care proximately caused the continuance or natural progress of the Veteran’s liver cancer due to a failure to timely diagnose and properly treat the Veteran’s liver cancer while treating the Veteran for a different liver condition. After careful consideration, the Board finds that the preponderance of the evidence weighs against a finding that the VA failed to timely diagnose the Veteran’s liver cancer. 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 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 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). As such, 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). As noted above, a claimant may establish that the qualifying disability was directly caused in either of two ways: 1) by carelessness, etc., or 2) by an event not reasonably foreseeable. 38 U.S.C. § 1151(a). The Board notes that such disability or death need not be “directly” caused by the “actual” medical care provided by VA personnel; however, section 1151 does not extend to the “remote consequences” of VA medical treatment. See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013). 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, medical or surgical treatment, or examination caused the additional disability or death. 38 C.F.R. § 3.361(c). It must also be shown that 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, representative’s informed consent. 38 C.F.R. § 3.361(d)(1). 3.361(d)(1). At issue in this case is whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Id. The appellant does not assert, nor does the evidence suggest, any allegations of a lack of consent. As noted above, the present case, however, essentially concerns a claim alleging VA’s failure to treat or diagnose the Veteran’s liver cancer. The United States Court of Appeals for Veterans Claims (Court) has recognized the “difficulty in assessing the element of causation in cases involving an omission, such as a failure to diagnosis, versus those based on a commission, or an affirmative act, that leads to clearly identifiable injuries.” Roberson v. Shinseki, 22 Vet. App. 358, 363 (2009). In a claim based on an alleged failure to diagnose, “a claimant cannot demonstrate an injury unless it is shown that VA should have diagnosed the condition in question. Upon successfully demonstrating an injury or aggravation, a claimant must then prove that the injury or aggravation-the failure to diagnose-resulted in additional disability or death.” Id. Essentially, in order to prove a claim under 38 U.S.C. § 1151 for failure to diagnose or treat a condition, the evidence must show: (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. Id. The appellant asserts that the crux of the claim is that the VA failed to timely diagnose the Veteran with liver cancer, resulting in additional disability and ultimately death, when he had significant liver pathology for a number of years before any VA medical provider took diagnostic measures, despite knowledge of a potential liver condition. The appellant asserts that the Veteran was not formally diagnosed with liver cancer until 2016, when biopsies and magnetic resonance imaging (MRI) confirmed severe liver cancer. The appellant asserts that VA medical records from 2012 indicated elevated liver function testing on numerous occasions and an August 2012 podiatric record indicated that the provider considered prescribing oral anti-fungal medication but did not because the Veteran’s liver functions were somewhat elevated. The appellant asserts that despite the elevated readings, no action was taken by VA at any point and the Veteran’s liver cancer went undetected for years until discovered by a private medical provider. Turning to the medical evidence, the Veteran received VA treatment as well as private treatment. December 2012 VA treatment records note that the Veteran had elevated liver function tests (LFTs). August 2013 VA treatment records note the Veteran’s podiatrist considered prescribing oral terbinafine but indicated the Veteran’s liver functions were somewhat elevated. October 2016 private treatment records note a diagnosis of liver cell carcinoma and February 2017 VA treatment records note the Veteran was undergoing treatment for liver cancer. Particularly, an October 2016 private treatment record reflects a note of diagnosis, liver needle biopsy: carcinoma with mixed hepatoid and glandular differentiation arising in a background of cirrhosis. The note further reflects comments that the histologic features raise the possibility of a mixed hepatocellular carcinoma (HCC) - cholangiocarcinoma, clinical correlation required. Progress notes reflect a note and diagnosis of hepatocellular carcinoma (liver cell carcinoma, C22,0). A later October 2016 private treatment record reflects the examiner’s diagnosis of liver masses (hepatomegaly, not elsewhere classified). A VA medical opinion was rendered in February 2020 regarding whether there was carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault by VA while furnishing medical care in failing to time diagnose the Veteran’s liver cancer and if so, whether this failure caused an additional disability and/or the Veteran’s death. In reviewing the claims file, the examiner noted that the Veteran had significant systemic disease, including but not limited to: diabetes mellitus, diabetic neuropathy, hypertension, obesity, sleep apnea, thrombocytopenia, cramps, headache, foot pain due to neuropathy, degenerative joint disease, dermatitis, irritable bowel syndrome, tobacco dependence, continuous, depression & anxiety, esophageal varices, cirrhosis, and Parkinson’s disease. The examiner opined that, after having reviewed available medical records and the information therein, there was insufficient evidence of VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault while furnishing medical care in failing to timely address elevated liver function tests and diagnose liver cancer. The examiner further opined that, after having reviewed available medical records and the information therein, there was insufficient evidence that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. The examiner concluded that the Veteran’s continuous alcohol use was the proximate cause (alone or in combination with other factors alluded to above) of hepatic insult, as alcohol is known hepato-toxic. The examiner rationalized that alcohol alone can cause abnormal LFTs, without any hepato-toxicity of medication and as is now known, the Veteran had esophageal varices and cirrhosis, both pathognomonic of chronic alcohol abuse. The examiner reviewed the chronology of events, noting that the Veteran had chronic abnormal LFTs for several years. As noted by the examiner, the Veteran’s laboratory tests were evaluated multiple times. The examiner noted that until 2016, his LFTs were out of normal range but still demographically what would be considered within the realms of sound medical practice by several providers to be likely due to obesity, diabetes, medications, and alcohol, alone or in combination. The examiner noted that the Veteran was admitted in October 2016 with abdominal pain, hematemesis, melena, and anemia due to blood loss from upper gastrointestinal (GI) bleeding and noted to have episodes of black stools for five to six weeks prior, thought to be due to Meloxicam, which he was advised to discontinue. The examiner noted that while his GI endoscopy work up was being scheduled by his VA physician, he became critically ill with blood loss anemia and was admitted. The examiner noted that the Veteran’s diagnostic work-up included esophagogastroduodenoscopy, demonstrating varices and gastritis, while imaging showed liver masses. The Veteran’s markers were abnormal and liver biopsy confirmed HCC. The examiner noted that Dr. R.N. opined: ….upper GI bleed with upper endoscopy findings of esophageal varices in the distal third esophagus as well as gastritis.....etiology of varices consistent with possible portal hypertension given liver mass, given no alcoholic consumption for greater than 40 years per patient... As discussion in support of his opinion, the examiner stated that the Veteran was periodically evaluated with blood tests, his liver function tests were monitored, and his hepatitis panel was negative on several occasions, as was the additional relevant work up. The examiner noted that the Veteran had significant psychiatric and medical problems, for which he was prescribed several medications. Further, the examiner noted that the Veteran was obese with a body mass index greater than 31, required medication for uncontrolled diabetes, and was on several psychotropic and anti-inflammatory medications. The examiner stated that “most, if not all [of] these drugs can and do cause abnormal LFTs.” The examiner reviewed the Veteran’s LFTs performed by his VA providers prior to his cancer diagnosis and found them to be consistent with the alcoholic and non-alcoholic fatty liver disease, and other factors correctly mentioned by various providers. Specifically, the examiner noted a notation of a spike in LFTs during emergency hospitalization in 2016 that was not seen previously, which was “consistent with the diagnosis of metastatic HCC at that time and not before.” Further, the examiner stated that as the Veteran had liver test abnormalities that were considered chronic (more than several years), the periodic laboratory tests and evaluations he had were exactly what was needed, as recommended by his providers, and were performed. The February 2020 examiner determined from the records that the “gold-standard” for evaluating a patient with abnormal LFTs was followed for the Veteran by his VA providers. The examiner further noted that the Veteran was seen on an annual basis for continuing licensing requirements for his job as a truck driver, and that concluded that the Veteran was “obviously” found fit and qualified to these employment requirements. The examiner further noted that the Veteran was also being seen by civilian physicians who also did not recommend to the Veteran anything different, as they obviously/presumably, had the same information from the Veteran. The examiner reiterated that HCC is more common in cirrhosis and the very first time the Veteran complained to his VA provider about gastrointestinal complaints in 2016, he was promptly referred for endoscopic consultation; however, he deteriorated quickly due to metastatic HCC complications and was admitted. The examiner remarked that medicine is not a definite science and cannot predict the future and that each. The examiner explained that every diagnostic test has limitations, but physicians are required to use technology and tests at their disposal in a responsible manner and that while no invasive test is without complications and risks to the patients, use of a careful, measured, prudent diagnostic approach is required. Hence, the examiner unequivocally concluded that the Veteran received care at the VA in an utmost professional manner, even though, he was less forthcoming about his alcohol consumption. Based on the foregoing, entitlement to compensation under 38 U.S.C. § 1151 is not warranted, as the preponderance of the evidence weighs against the claim. Here, the February 2020 examiner’s opinion constitutes the most probative evidence as to whether VA demonstrated carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in not diagnosing the Veteran’s liver cancer prior to when it was identified in October 2016 by private providers. As explained above, the February 2020 examiner adequately assessed the chronology of events in discussing the Veteran’s care at the VA and provided a thorough rationale, based on the Veteran’s medical history and medical literature, in support of the opinion against the claim. The Board finds that this medical opinion is based on an accurate understanding of the Veteran’s medical history and contentions, it is consistent with the other medical evidence of record, and the February 2020 VA examiner provided adequate discussion and rationale for his findings. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (a medical examination report must contain clear conclusions with supporting data and a reasoned medical explanation). Therefore, the Board finds the February 2020 opinion the most probative evidence of record. As there is no existing medical evidence in the record to contradict the February 2020 findings, there is no basis to contradict the examiner’s conclusions against the claim. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Essentially, the most probative evidence does not indicate that there was carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault by VA while furnishing medical care in failing to time diagnose the Veteran’s liver cancer or that the care the Veteran received at VA medical facilities caused an additional disability and/or led to his death. In reaching this determination, the Board has considered the appellant’s assertions. The Board finds the appellant to be competent to relay her own observations as to the Veteran’s medical history and the events surrounding his cancer diagnosis. However, the appellant has not demonstrated any specialized knowledge or expertise to indicate that she is capable of rendering a competent medical opinion regarding the propriety or timing of a medical diagnosis or causation as to whether VA demonstrated carelessness or lack of care. Although lay persons are competent to provide opinions on some medical issues, as to the specific issue in this case, the etiology of liver cancer falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). In making this determination, the Board does not wish to convey any lack of sympathy for the Veteran’s death and the appellant’s assertions in this matter, and does not doubt the sincerity of her contentions. However, the preponderance of the evidence fails to show that the Veteran’s progression of liver cancer was proximately caused by VA treatment failing to diagnose the disease in a timely manner. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule is not for application, and entitlement to compensation under the provisions of 38 U.S.C. § 1151 for liver cancer is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, Associate 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.