Citation Nr: 21065109 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 14-43 021 DATE: October 25, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for additional disability resulting from VA treatment, claimed as a result of VA failing to properly diagnose and timely treat non-small cell lung cancer, for the purpose of retroactive benefits on the basis of substitution, is denied Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1151, claimed as a result of VA failing to properly diagnose and timely treat non-small cell lung cancer, is denied. Entitlement to DIC under 38 U.S.C. § 1318 is denied. FINDINGS OF FACT 1. The preponderance of evidence is against a finding of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in the diagnosis and treatment of the non-small cell lung cancer that led to the Veteran's death. 2. The Veteran was not a former prisoner of war (POW), and he was not in receipt of or entitled to receive VA disability compensation at the 100 percent rate for a period of at least five years immediately after his discharge from active service or for 10 or more years prior to his death. CONCLUSIONS OF LAW 1. The criteria for compensation under 38 U.S.C. § 1151 for additional disability resulting from VA treatment for the purpose of retroactive benefits on the basis of substitution have not been met. 38 U.S.C. §§ 1151, 5121A; 38 C.F.R. §§ 3.361, 3.1010. 2. The criteria for DIC under 38 U.S.C. § 1151 have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 3. The criteria for entitlement to DIC benefits under the provisions of 38 U.S.C. § 1318 have not been met. 38 U.S.C. § 1318; 38 C.F.R. § 3.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1973 to December 1993. He died in April 2010. The Appellant is the Veteran's surviving spouse; she has been substituted for the Veteran for the purpose of processing the 1151 claim that was pending at the time of his death to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. The Appellant also seeks DIC benefits under 38 U.S.C. § 1151, as well as DIC benefits pursuant to 38 U.S.C. § 1318. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Appellant appeared at a hearing before the undersigned in March 2017. A transcript of the hearing is of record. The Board initially remanded the issues on appeal in June 2019 for an advisory opinion from an independent medical expert (IME). See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. In April 2021, the Board deemed a second remand necessary because an October 2020 IME opinion obtained by the Agency of Original Jurisdiction (AOJ) failed to substantially comply with the June 2019 remand directives. The Board's April 2021 remand directives requested an addendum to the October 2020 IME that specifically addressed written statements from the Appellant discussing the Veteran's treatment history in the context of the timeliness of non-small cell lung cancer diagnosis and treatment. The AOJ obtained the requested addendum in May 2021; therefore, there has been substantial compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to compensation under 38 U.S.C. § 1151 for additional disability resulting from VA treatment, claimed as a result of VA failing to properly diagnose and timely treat non-small cell lung cancer, for the purpose of retroactive benefits on the basis of substitution, is denied. 2. Entitlement to DIC under 38 U.S.C. § 1151, claimed as a result of VA failing to properly diagnose and timely treat non-small cell lung cancer, is denied. Under certain circumstances, VA provides benefits for additional disability or death resulting from VA medical treatment in the same manner as if such disability or death were service-connected. See 38 U.S.C. § 1151. For a claimant to qualify for such benefits, the additional disability or death must not be the result of the veteran's willful misconduct, and such disability or death must be caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility. 38 U.S.C. § 1151(a). For a claimant to be entitled to benefits when additional disability or death is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability or death must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. Entitlement to benefits under 38 U.S.C. § 1151 may be based on the failure to diagnose and/or treat a preexisting condition. This theory of entitlement requires 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 claimant suffered a disability that probably would have been avoided if the proper diagnosis and treatment had been rendered. See Roberson v. Shinseki, 607 F.3d 809, 816-17 (Fed. Cir. 2010); see also VAOPGCPREC 5-2001. When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Prior to his death, the Veteran filed a compensation claim pursuant to 38 U.S.C. § 1151, asserting "a misdiagnosis and lack of follow up from early signs of hypoxia, lung cancer." Following the Veteran's death, the Appellant filed a DIC claim based on the same theory, asserting VA providers failed to timely diagnosis and treat the Veteran's non-small cell lung cancer. The Board notes the Appellant has not alleged a service-connected disability was either a primary or contributory cause of the Veteran's death, and there is no evidence that otherwise raises such a theory of entitlement; therefore, the Board's analysis in this case is focused solely on the provisions of 38 U.S.C. § 1151 for both the Veteran's compensation claim, as well as the Appellant's DIC claim, although DIC benefits under 38 U.S.C. § 1318 will be discussed below. The record reflects the Veteran was first diagnosed as having lung cancer in March 2009. The Veteran's death certificate and other medical opinions of record confirm acute respiratory failure due to respiratory distress syndrome and non-small cell lung cancer led to the Veteran's death in April 2010. In January 2011, a VA examiner provided an initial 1151 opinion and reported there was no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination to the Veteran, explaining "it appears all diagnostic testing, staging, and treatment were done in a timely fashion" given "the Veteran did not show any changes in his pulmonary symptoms consistent with carcinoma prior to the diagnosis." The January 2011 VA examiner further noted the Veteran's consent was documented for each procedure he underwent, to include chemotherapy and radiation therapy. As previously noted, the Board initially remanded the Appellant's claim in June 2019 for an IME opinion due to the nature of the contentions on appeal. See 38 U.S.C. § 5109; 38 C.F.R. § 3.328. In October 2020, a pulmonary disease specialist, E.E., M.D., provided the requested IME opinion and reported there was no indication VA providers failed to timely diagnosis and/or treat lung cancer in the Veteran's case. E.E., M.D., explicitly addressed the Appellant's assertion that symptoms the Veteran manifest as early as 2002 suggested consideration of cancer was warranted at that time. E.E., M.D., acknowledged there were very minimal treatment encounters prior to 2002 but explained those from approximately 2002 to 2003 related to symptoms and/or conditions that are not indicative of lung cancer. Although E.E., M.D., did not explicitly address an April 2017 statement written by the Appellant, as required by the Board's June 2019 remand directives, the Board finds his opinion maintains probative value as it is clearly based on an accurate factual history due to the inclusion of extensive treatment notes from the Veteran's medical records during the period in question, as well as acknowledgement of the Appellant's lay reports and assertions in the context of this appeal. In April 2021, the Board deemed it necessary to obtain an addendum to the October 2020 opinion due to the failure of E.E., M.D., to explicitly address the concerns raised by the Appellant in her April 2017 written statement detailing the Veteran's treatment history. The AOJ obtained the requested addendum in May 2021. The May 2021 addendum explicitly addresses the Appellant's contentions that VA failed to timely diagnose the Veteran's lung cancer prior to March 2009 in light of the respiratory symptoms he began to manifest in 2003 and/or in light of an alleged predisposition for cancer that was not considered due to skin symptomatology potentially being misattributed to tinea pedis rather than his subsequently diagnosed melanoma. The author of the May 2021 addendum, J.W., M.D., explained "[g]iven the aggressive nature of the Veteran's lung cancer, and the speed with which it metastasized, there is no possible connection between the Veteran's respiratory symptoms in 2003 and lung cancer in 2009, a span of [six] years." J.W., M.D., further noted the Veteran being African American had no predisposition to skin cancer and explained tinea pedis and the Veteran's other skin conditions are "distinctly independent clinical conditions and not causally related" to his melanoma, adding it is commendable that VA providers recommended and performed a biopsy when a suspicious lesion was noted when considering how difficult it is to diagnose melanoma in African American patients. J.W., M.D., ultimately concluded that there is no evidence that there was a failure to timely diagnose and treat lung cancer in the Veteran's case because "the Veteran's different medical conditions in different medical locations were each evaluated by a provider appropriate for that condition" with "no medical basis to assume" that the treating providers missed warning signs of a predisposition for cancer. J.W., M.D., noted "medicine is not a definite science and cannot predict the future" and explained "each and every diagnostic test has limitations and side effects" with physicians being "required to use technology and tests at their disposal in a judicious responsible manner", concluding the "calculated measured approach" in the Veteran's case was consistent with the standard of care and permitted him to make well-informed decision regarding his course of treatment. The Board finds the October 2020 IME and May 2021 addendum to be the most probative evidence of record regarding the 1151 claims on appeal. Together, these well-reasoned opinions provide a detailed analysis of why the Veteran's symptoms were not early warnings signs of cancer warranting earlier diagnosis and treatment as alleged on appeal. Rather, the opinions establish treatment consistent with the degree of skill and care ordinarily required of the medical profession with numerous physicians/surgeons involved in the Veteran's treatment due to the complex nature of his co-morbidities; nevertheless, these providers "were careful, thoughtfully recognized symptoms or complications in a timely fashion, and acted upon them promptly." In sum, the preponderance of evidence is against a finding of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in the diagnosis and treatment of the non-small cell lung cancer that led to the Veteran's death. There is no indication additional disability or the Veteran's death resulted from an event not reasonably foreseeable, as the expert evidence of record indicates the continuance of the natural progress of the disease led to the Veteran's death in April 2010. Thus, the criteria for neither compensation nor DIC benefits under 1151 have been met in this case, and, to that extent, the appeal is denied. In reaching this finding, the Board does not question the Appellant's credibility; however, as explained by J.W., M.D., medicine is not exact science with limitations on what is possible in the face of aggressive forms of cancer like the Veteran's. The Board expresses its condolences to the Appellant given her loss and recognizes the significance of the Veteran's service to this country. 3. Entitlement to DIC under 38 U.S.C. § 1318 is denied. DIC benefits may be paid to a deceased veteran's surviving spouse in the same manner as if the veteran's death was service-connected if the deceased veteran is one who died not as the result of his or her own willful misconduct and was in receipt of or entitled to receive compensation at the time of death for a service-connected disability continuously rated totally disabling for a period of 10 or more years immediately preceding death; or continuously rated totally disabling for a period of not less than five years from the date of the veteran's discharge or other release from active duty; or the veteran was a former POW and died after September 30, 1999 and the disability was continuously rated totally disabling for a period of not less than one year immediately preceding death. 38 U.S.C. § 1318(b); 38 C.F.R. § 3.22(a). The total rating may be either schedular or based on unemployability. 38 C.F.R. § 3.22(c). Here, the Veteran was released from active service in December 1993. He was not rated as totally disabling until February 3, 2007, so his service-connected disabilities were not continuously rated totally disabling for a period of not less than five years from the date of his discharge or other release from active duty. The Veteran died in April 2010, so his service-connected disabilities were also not continuously rated totally disabling for a period of 10 or more years immediately preceding death. There is no indication the Veteran was a former POW. The Board is prohibited from considering new evidence regarding the Veteran's service-connected disabilities because claims for DIC benefits under 38 U.S.C. § 1318 based on "hypothetical entitlement" are barred by 38 C.F.R. § 3.22. See Tarver v. Shinseki, 557 F.3d 1371 (Fed. Cir. 2009). Thus, the law is dispositive in this case, and the Appellant's claim of entitlement to DIC benefits under the provisions of 38 U.S.C. § 1318 must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.