Citation Nr: 21062622 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 16-48 190 DATE: October 8, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residuals of empyema claimed to be due to treatment at the White City VA Medical Center (VAMC) in December 2008 and January 2009, for substitution purposes, is denied. FINDING OF FACT The Veteran did not incur an additional disability, to include residuals of empyema, due to VA hospital care or medical treatment. CONCLUSION OF LAW The criteria for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of empyema, for substitution purposes, have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1956 to September 1961. The appellant is the Veteran's surviving spouse and she has been substituted as the claimant for purposes of processing this claim, pending at the time of the Veteran's death, to its completion. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In March 2018, the Veteran and his spouse presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's VA claims file. In decisions dated April 2018, May 2019, February 2021, and June 2021, the claim on appeal was remanded for further evidentiary development. As will be described below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Most recently, a supplemental statement of the case (SSOC) was issued in August 2021. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. 1. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of empyema claimed to be due to treatment at the White City VAMC in December 2008 and January 2009, for substitution purposes. In pertinent part, 38 U.S.C. § 1151 reads as follows: "(a) Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and(1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was (A) careless, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable." 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. See 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. See 38 C.F.R. § 3.361(c)(2). (ii.) Carelessness, negligence, etc.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. 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. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. See 38 C.F.R. § 3.361(d)(1). (iii.) ForeseeabilityWhether 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 disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d). In this matter, the appellant asserts entitlement to benefits pursuant to 38 U.S.C. § 1151 for residuals of empyema, which she claims resulted from the Veteran's misdiagnosis by VA treatment providers in December 2008 and January 2009. See, e.g., the Board hearing transcript dated March 2018. Specifically, the appellant contends that VA providers failed to order a chest x-ray despite the Veteran's reports of coughing up blood on at least three occasions in December 2008. Id. at pgs. 3-9. For the reasons set for below, the Board finds that compensation pursuant to 38 U.S.C. § 1151 is not warranted. The record on appeal includes a December 2008 VA telephone encounter note, which indicates that the appellant called to report the Veteran was experiencing a small amount of red sputum when coughing. She reported that he did not have a fever or chills. She indicated that the Veteran reported only a small amount of blood when he was clearing his throat, which appeared to be an irritation. It was noted that the Veteran was unable to make an appointment for that day due to weather issues. The appellant requested an appointment for Monday. See the VA Team Telephone Encounter Note dated December 23, 2008. A subsequent December 2008 VA nursing note recorded the Veteran's reports that he thought he had a cold and wanted to speak with the doctor about having "a little bit of blood" in the discharge that he had been coughing up. It was noted that the Veteran's temperature was 98.9 degrees. See the VA Nursing Note dated December 29, 2008. A December 2008 VA physician note recorded the Veteran's complaints of acute sinusitis after an upper respiratory infection one week prior. It was indicated that the Veteran had a low-grade fever of 99.8 and acute exacerbation of chronic intermittent rhinorrhea. The Veteran complained of post-nasal drainage. Nausea, diarrhea, vomiting, and frank rigors were not found. Regarding the Veteran's chest, "CTA with air movement throughout" was noted. The assessment was acute sinusitis on chronic rhinosinusitis, for which the Veteran was prescribed Septra and Flunisolide. Sinus x-rays were ordered. See the VA Physician Note dated December 29, 2008. A December 2008 x-ray of the sinuses revealed normal pneumatization of the frontal and axillary sphenoid and ethmoid sinuses. It was noted that no obvious air fluid levels or mucosal thickening were seen. No bony sclerotic or destructive changes were noted. See X-ray Impression Report dated December 29, 2008. A January 2009 VA physician note indicated that the Veteran presented with continued complaints of drainage down his throat when lying on his back. The Veteran also complained of "running nose anytime," which was not associated with eating or with going into the cold. See the VA Physician Note dated January 21, 2009. The Veteran's temperature was recorded as 98.9 degrees. No chest pain or dyspnea with exertion was noted. Dysuria and nocturia were not found. It was noted that the Veteran had a good appetite, daily bowel movements, and had been sleeping well. The assessment was "rhinorrhea with sometimes cough when lying on back." Id. Allergy testing for pollen/allergens to the area was advised. The Veteran was instructed to continue with Flunisolide. The Veteran was prescribed a trial of Loratadine and Atrovent nasal spray and Benzonatate for his cough. An ENT request was given at the Veteran's request. Id. A January 2009 emergency department record from a private facility noted that the Veteran presented with a cough and left rib pain. The Veteran reported the onset of a forceful cough over the last week. He indicated that he had been seen at the VAMC and started on a sulfa-based antibiotic and Robitussin DM without any improvement. The Veteran also reported that he experienced nasal and chest congestion and had some yellow productive cough, which was blood-tinged. A chest x-ray indicated left lobular pneumonia, for which the Veteran was prescribed Levaquin and Tussionex. He was discharged and instructed to follow up with the VAMC on February 1, 2009. At the time of discharge, it was noted that the Veteran's condition was "stable, improved, and no emergent condition [wa]s present." See R.V.M.C. Emergency Department Report dated January 31, 2009. A February 2009 emergency department record from the same private facility noted that the Veteran presented with complaints of increasing left lung pain. Diagnoses of pneumonia and pleurisy were noted. The emergency department record additionally indicated that the Veteran "may need to follow up with oncologist if doesn't resolve with antibiotics." See R.V.M.C. Emergency Department Discharge Instructions dated February 1, 2009. The Veteran was prescribed Vicodin, Naprosyn, and Levaquin and directed to follow up with Dr. S. Id. A February 2009 private treatment record noted that the Veteran presented for evaluation after having been seen in the emergency room. He reported chronic cough and increasing chest wall pain. It was noted that the Veteran was seen and treated in the emergency room, at which time antitussives were given and a chest X-ray and chest CT were performed. It was also indicated that the chest CT demonstrated a 4.5 cm upper lobe mass and pleural thickening or pleural fluid at the base of the left lower lobe. The physician stated that the antitussives had helped, but the Veteran was still experiencing pain and chronic cough, which had been ongoing since December. A CT-guided biopsy and ultrasound guided thoracentesis of the pleural fluid was ordered. See R.V.C.M. History and Physical Final dated February 14, 2009. A February 21, 2009 operative note indicated that the Veteran was scheduled for surgery after thoracentesis confirmed empyema. It was noted that a CT-guided biopsy of his left chest and lung mass demonstrated fibrotic tissue, consistent with pneumonia. See Operative Note Final dated February 21, 2009. Pursuant to the Board's May 2019 remand instructions, a VA medical opinion was obtained in July 2019. After reviewing the claims file, the examiner opined in pertinent part, It is my opinion that Veteran less likely than not (less than 50% probability) that veteran incurred additional disability as result of VA failure to diagnose pneumonia and/or empyema when he sought VA treatment in Dec 2008 and Jan 2009. There were no specific findings at his VA office visit on 12/29/2008 and 1/21/2009 to indicate that he had diagnosable pneumonia or empyema at that time, and was treated appropriately for the condition presenting to the VA with antibiotics. Records indicate that Veteran[']s condition worsened after 1/21/09 and progressed to pneumonia during the week prior to 1/31/2009, and treated with antibiotics on 1/31. Veteran then progressed after 1/31 and was treated for empyema 2/14/2009. Veteran indicated that he was a forklift operator during active duty from 1981 to 1991 and while in the Reserves from 1994 to 2006. An additional VA medical opinion was obtained in November 2020. After reviewing the claims file, the examiner opined that the Veteran's residuals of empyema were not due to VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. The examiner opined in pertinent part, VA physician notes 12/29/08 and 1/21/09 indicate that physician clarified symptoms with patient as well as evaluating signs and examined patient to make diagnosis of acute sinusitis on chronic rhinosinusitis on 12/29 (which clarified the source of his discharge and blood), and rhinorrhea w[ith] sometimes cough when lying on back on exam 1/21. The exam and conclusion by examining physician indicated that his infection and drainage was from his nose and sinuses (indicating that any blood in the drainage was from his nose and sinuses). No findings indicating that he had lung infection prior to 1/31/09. (No bronchitis or pneumonia, etc. was identified until 1/31/2009 when his symptoms had progressed). It is my opinion that VA evaluations were done in logical, professional manner as would be expected of a reasonable healthcare provider. Veteran did not have signs or symptoms of pneumonia until his 1/31/09 evaluation, after developing new symptoms during the prior week. Regarding whether the Veteran's residuals of empyema were due to an event not reasonably foreseeable, the examiner opined the following: Veteran's history and findings 12/29/08 and 1/21/09 at VA were of upper respiratory condition only (nose and sinus); without sufficient evidence to conclude that blood in his discharge likely originated from his lung rather than his nose and sinuses which had clear evidence of infection on clinical exam. Thus, I conclude insufficient indication for chest x-ray with the evidence available at that time. It is my opinion that VA evaluations 12/29/08 and 1/21/09 were done in logical, professional manner as would be expected of a reasonable health care provider. With currently available information, I would consider ordering chest XR [x-ray] questionable before 1/31/09, and as likely as not, unnecessary for the patient at that point in time. The physician[']s evaluation 12/29/08 was more in depth, and more detailed than the earlier reports by nonphysician staff cited in assessing the report of discharge and blood. Veteran did progress to lower respiratory condition (lungs) 1/31/2009, at which time chest x-ray was appropriately indicated, and veteran appropriately treated with a different antibiotic for left lingula and probable lower lobe pneumonia. His findings at that time were of acute early pneumonia at the time of that exam, without evidence of chronic findings that would have changed earlier management of the patient. Appropriate medical care and treatment does not prevent all potential complications in progression of an infection. Unfortunately, Veteran's condition deteriorated further in spite of his first two antibiotic treatments, and was admitted to hospital 2/14/2009 after CXR and chest CT demonstrated a new 4.5 cm left upper lobe mass, indicating that the pneumonia had progressed into his left upper lobe during the two week period after 1/31/09. No evidence of left upper lobe disease or abscess were present in the 1/31/2009 chest XR report and clinical exam. Appropriate medical care and treatment does not prevent all potential complications in progression of an infection. In the February 2021 decision, the Board determined that the July 2019 and November 2020 VA medical opinions were inadequate as the examiner based his opinion, in part, on an inaccurate factual premise, namely that the Veteran's pneumonia progressed into his left upper lobe during the two week period after January 31, 2009. The Board found that the examiner failed to consider the February 1, 2009 emergency room record noting that the Veteran presented with complaints of increasing left lung pain, at which time a diagnosis of pleurisy was noted. The examiner also failed to consider pertinent private treatment records. As such, the claim on appeal was remanded in February 2021 to obtain a new VA medical opinion to adequately address the claim on appeal. Pursuant to the February 2021 Board Remand, the Veteran was afforded VA medical opinions in March 2021. The VA examiner reported, Records showed that Veteran was seen in the outpatient department on 12/29/2008 due to colds and coughing. Physical exam indicated that the lungs were clear indicating that he is not having pneumonia at that time. He was noted with sinusitis and was place on a 10 day course of Sulfamethoxazole 400, Trimethoprim 80 mg BID for 10 days, nasal spray and cough syrup. On January 21, 2009, he was again seen at the VA SORCC outpatient clinic and was noted that there was no chest pain or dyspnea. Temperature was 98.9 degrees. No indication of severe lung condition at that time. The Veteran was then presented to Rogue Valley Medical Center (RVMC) on 1/31/2009 with complaint of shortness of breath especially with forceful coughing and exertion. Chest x-ray was ordered and he was diagnosed with pneumonia, given a prescription for Levofloxacin and discharged. X-ray did not confirm presence of empyema at that time. Provider acted accordingly on the presenting symptoms and based on the physical examination. Pneumonia is a common pulmonary condition that can be basically diagnosed on physical examination, he was diagnosed with pneumonia and appropriate treatment was prescribed. Empyema will not show in the x-ray in its early stage and this explains why diagnosis was not made without radiologic findings. Therefore, it is less likely than not that the proximate cause of such additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. The March 2021 VA examiner then concluded, "it is less likely than not that the Veteran incurred an additional disability as a result of VA's failure to diagnose pneumonia and/or empyema when he sought VA treatment in December 2008 and January 2009." In a separate March 2021 medical opinion based on the same rationale, the VA examiner concluded, "it is less likely than not that the proximate cause of such additional disability was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA." In a third March 2021 opinion, the VA examiner provided identical rationale and concluded, "it is less likely than not that such disability was due to an event not reasonably foreseeable." The June 2021 Board remand determined that the identical rationale provided in all three VA medical opinions was nonsensical, contradictory, and non-responsive to the questions posed in the February 2021 Board Remand. Moreover, the March 2021 VA examiner's rationale failed to address specific VA and private treatment medical evidence, as instructed in the February 2021 Board Remand. The appeal was therefore again remanded in order to obtain a new VA opinion. Pursuant to the June 2021 Board remand, a VA medical opinion was obtained in August 2021, at which time the examiner reviewed the Veteran's medical history and noted pertinent medical findings. The examiner determined, "[i]t is my opinion [it is] less likely than not (less than 50% probability) that [the] Veteran incurred additional disability as result of VA failure to diagnose pneumonia and/or empyema when he sought VA treatment in Dec 2008 and Jan 2009." He explained, "[t]here were no specific findings at his VA office visit on 12/29/2008 and 1/21/2009 to indicate that he had diagnosable pneumonia or empyema at that time, and was treated appropriately for the condition presenting to the VA with antibiotics." He further opined, "[r]ecords indicate that veterans condition worsened after 1/21/09 and progressed to pneumonia during the week prior to 1/31/2009, and treated with different antibiotics on 1/31. Veteran then progressed after 1/31 and was treated for empyema 2/14/2009." The August 2021 VA examiner further explained, Medical records showed onset of complains of cough associated with blood dated 12/23/2008 without associated fever or chills. He was medically evaluated dated 12/29/2008 for acute sinusitis. He reports having upper respiratory tract infection without fever or shortness of breath noted. Physical examination at that time showed clear lungs. Veteran was treated conservatively. Veteran again presented at the clinic dated 1/21/2009 for history of post nasal drainage on the nose at which X-ray of the sinuses were requested. Again, there was no reported fever or shortness of breath at that time. Medical records showed that in 1/31/2009 when he developed marked left sided chest pain at which prompted him to medical clinic. Chest X-ray dated 1/31/2009 showed left mid lung field infiltrate extending to the pleura [w]ith some pleural thickening extending down to the costophrenic angle which is blunted. Veteran was diagnosed with pneumonia where he was treated with antibiotics. Upon re-evaluation CT guided biopsy and ultrasound guided thoracentesis was done for empyema. The Veteran had 2 chest tubes placed for the drainage and later underwent VATS decortication. However, he again present[ed] with recurring fever and dyspnea at which repeat CT scan dated 3/29/2009 demonstrates enlarging loculated fluid collection in the left lung with thick walls and increasing consolidation consistent with worsening empyema. He again underwent left thoracotomy with decortication. Overall review of medical records showed that the Veteran's presentation of clinical history and physical examination findings do not suggest any pneumonia or empyema at that time. Veteran was treated given appropriate treatment based on history and physical examination at that time. Veteran presented with fever, shortness of breath around late January 2009 and worked up showed evidence of pneumonia and subsequent empyema and was given appropriate treatment. I do not see any negligence as the initial presented history and physical examination consistent with acute on chronic sinusitis condition without specific findings on the lungs at that time The August 2021 VA examiner further noted, "[t]he coughing out of blood without symptoms of fever or dyspnea was mentioned likely due to irritation from post nasal symptom. Physical examination was negative at the time of presentation." When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." Following a review of the record, the Board finds that the preponderance of the evidence demonstrates that the Veteran did not have an increase in disability or incur additional disability to include residuals of empyema as a result of VA medical treatment. As the Veteran did not sustain additional disability as a result of VA medical treatment, service connection under 38 U.S.C. § 1151 cannot be established. Crucially, the Board finds the August 2021 VA medical opinion to be probative as to the questions of additional disability, as the opinion is based upon a thorough review of the record and a detailed rationale based upon the Veteran's pertinent medical history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Here, the August 2021 VA examiner provided a detailed rationale to support his conclusions. Significantly, the conclusions set forth by the August 2021 VA examiner were rendered based upon review of the entire claims file, discussion of the clinical record, and thorough analyses of the medical evidence. The rationale set forth in the August 2021 opinion was substantial, thorough, and based on the overall record. The appellant has not submitted a medical opinion to contradict the conclusions of the August 2021 VA examiner. The Veteran has been accorded ample opportunity to present competent medical evidence in support of her claim. She has failed to do so. See 38 U.S.C. § 5107(a) (it is the claimant's responsibility to support a claim for VA benefits). The Board has considered the lay statements and testimony of the Veteran and the appellant documented in the VA claims file. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Significantly, the appellant does not possess the requisite medical expertise to determine whether the Veteran suffered from additional disability as a result of careless, 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 an event not reasonably foreseeable. Any such assertions by the appellant are not competent medical evidence and are, therefore, afforded little probative weight. Moreover, the lay theory of the appellant is contradicted by the conclusions of the August 2021 VA examiner who specifically considered these lay contentions, as well as the Veteran's medical history in rendering his negative opinion. The Board finds the specific, reasoned opinion of the trained health care provider who conducted the August 2021 VA medical opinion to be of greater probative weight than the more general lay assertions. For reasons explained above, the Board concludes that no permanent disability has been demonstrated as being due to VA medical care. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the appellant's favor when the evidence is in equipoise. Considering the overall evidence, including the Veteran's VA and private treatment records, the uncontradicted August 2021 VA medical opinion, and the evidence presented by the Veteran and the appellant, the Board finds that the negative evidence is more persuasive and of greater probative value. Accordingly, the competent evidence of record demonstrates that the Veteran did not incur an additional disability resulting from VA medical care. See 38 U.S.C. § 1151. In the absence of additional disability due to VA medical treatment, the matter of alleged VA negligence is moot. That is, in the absence of an additional disability which is demonstrated to be the result of VA medical care, whether such medical care was careless or not is of no consequence. Similarly, in the absence of disability due to VA medical treatment, the matter of (un)foreseeability need not be discussed. See 38 U.S.C. § 1151. In short, for the reasons and bases expressed above, the Board concludes that a preponderance of the evidence is against the appellant's claim for VA compensation under the provisions of 38 U.S.C. § 1151. Her claim is accordingly denied. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.