Citation Nr: 21006543 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-59 897 DATE: February 4, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for prostate cancer residuals, claimed as radiation burns, weakness, incontinence, sleeplessness, and anxiety is denied. INTRODUCTION The Veteran served on active duty in the United States Air Force from February 1952 to April 1970. FINDING OF FACT The Veteran’s claimed radiation burns, weakness, incontinence, sleeplessness, and anxiety did not result from an event not reasonably foreseeable or any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for prostate cancer residuals, to include radiation burns, weakness, incontinence, sleeplessness, and anxiety are not met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2020), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. In addition, VA medical opinions addressing the Veteran’s claim were obtained in April 2015 and November 2020. Further, the Veteran was afforded an opportunity for a hearing before a Decision Review Officer or before the Board, but declined to do so. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the Veteran’s claim. Analysis of the Claim The Veteran has contended compensation benefits are warranted for radiation burns, weakness, incontinence, sleeplessness, and anxiety, which he asserts were caused by treatment for his prostate cancer. In particular, the Veteran asserts the Fresno VAMC failed to timely notify him of his cancer diagnosis, and that as a result he experienced more harsh resulting from the treatment necessary to cure his cancer. When a Veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service connected. See 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.358 (a) (2020). For claims, as here, filed on or after October 1, 1997, the Veteran must show that the VA treatment in question resulted in additional disability, and further, that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the medical or surgical treatment, or that the proximate cause of the disability was an event which was not reasonably foreseeable. 38 U.S.C. § 1151 (2012); see also VAOPGCPREC 40-97 (Dec. 31, 1997). In determining whether additional disability exists, the Veteran’s physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other incident in which the claimed disease or injury was sustained (i.e., medical examination, training and rehabilitation services, or work therapy), is compared to his condition after such treatment, examination or program has stopped. See 38 C.F.R. § 3.361 (b) (2020). Provided that additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran’s additional disability. See 38 C.F.R. § 3.361 (c)(1) (2020). Furthermore, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment or other instance of fault proximately caused the additional disability, it must be shown either that VA failed to exercise the degree of care expected by a reasonable treatment provider, or furnished the medical treatment at issue without the Veteran’s informed consent. See 38 C.F.R. § 3.361 (d)(1) (2020). Proximate cause may also be established where the Veteran’s additional disability was an event not reasonably foreseeable to be determined based on what a reasonable health care provider would have foreseen. See Schertz v. Shinseki, 26 Vet. App. 362 (2013). 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 the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent (in accordance with 38 C.F.R. § 17.32 ). See 38 C.F.R. § 3.361 (d)(2) (2020). Determinations as to 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 (2020). 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. 38 C.F.R. § 3.361 (d)(1) (2020). Failure to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk. See McNair v. Shinseki, 25 Vet. App. 98 (2014). The Veteran’s case presents a novel theory of entitlement to compensation under 38 U.S.C. § 1151. In particular, the evidence shows the Veteran received his prostate cancer treatment at an outsourced private facility, and to be precise, the Veteran has not asserted the care he received at that facility was careless or negligent. Rather, the Veteran’s claim hinges on a theory that the Fresno VAMC failed to timely notify him of his initial diagnosis, and as such, he claims to have experienced more “harsh” residual manifestations resulting from the treatments necessary at that time. A review of the record shows the Veteran underwent a prostate biopsy at the Fresno VAMC in June 1999. The pathology report was completed less than a week later, and the Veteran’s treating clinician was informed of the positive results. However, the Veteran was not subsequently informed of the results until his next primary care visit in September 1999, which was 75 days after his treating physician was notified of the presence of cancer. The Veteran was notified of the presence of prostate cancer at that time and referred for both the Urology and Oncology follow-ups. In October 1999, the Veteran met with the Oncology Department, at which time treatment options were provided. The Veteran decided to not undergo immediate treatment in October 1999, instead choosing to consult a private physician to obtain a second opinion. His private clinician conducted additional tests to confirm his diagnosis in December 1999. Test performed at that time again revealed a markedly elevated prostate specific androgen (PSA) of 272, and a January 2000 biopsy revealed a Gleason 7 (4+3) adenocarcinoma of the prostate. The Veteran was started on Casodex and Zoladex hormone therapies in April 2000, and subsequently underwent radiation therapy from June to August 2000. The RO obtained a medical history review and opinion in April 2015. Though the examiner provided a comprehensive review of the Veteran’s medical history, she concluded she could not provide an opinion as to whether carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part resulted in additional residual disability without resort to speculation. As such, the Board finds this opinion to be of little probative value. The Board subsequently obtained a second VA medical opinion in November 2020, as well as an addendum medical opinion that same month. Though the examiner, like the April 2015 VA examiner, acknowledged the prolonged time taken in informing the Veteran of his diagnosis, the examiner concluded this delay did not result in an increase in the Veteran’s cancer or treatment necessitated to remedy his cancer. In support of this conclusion, the examiner pointed to the fact that the Veteran underwent a second biopsy in January 2000, which revealed an identical Gleason score as the biopsy that was performed in June 1999. The examiner explained that prostate adenocarcinoma is a relatively slow growing cancer, and the biopsy evidence in this case reveals the cancer did not further intensify in the time between the Veteran’s initial biopsy at the Fresno VAMC, and his subsequent biopsy conducted by his private physician. As such, the examiner determined the Veteran’s prostate cancer was less likely than not made worse as a result of the delay in informing him, and no additional treatment was necessitated by the delay. The Board finds the greatest probative evidence indicates the Veteran’s residual radiation burns, weakness, incontinence, sleeplessness, and anxiety were complications of standard treatment that did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA. (Continued on the next page)   Though the Veteran may sincerely believe his delayed notification of prostate cancer resulted in more harsh manifestations and treatments, the Board finds the greatest evidence indicates his cancer did not actually increase in severity during that time. This is clearly shown by identical prostate cancer biopsy reports both initially and after the above-noted delay period. The Board is sympathetic that under such circumstances the Veteran did experience a delay in being notified of his positive prostate cancer tests. However, the Board finds the greatest weight of the evidence indicates the delay did not result in any additional treatment or residuals that would not have occurred in the absence of the delay. Further, it cannot be said the Veteran was not reasonably informed of this side-effects of the proposed treatment he received, as his private treatment records clearly indicate he was provided all details of the proposed treatments, and provided a fully informed consent to treatment. The Board appreciates the difficulties the Veteran has faced as a result of his prostate cancer treatments; however, the Board finds the most probative evidence indicates his residuals were not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA. Therefore, the Veteran’s claim for entitlement to compensation under 38 U.S.C. § 1151 must be denied. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.