Citation Nr: 21008881 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-48 190 DATE: February 18, 2021 REMANDED 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 remanded. REASONS FOR REMAND The Veteran served on active duty from January 1956 to September 1961. He died in December 2019. 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 appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied entitlement to compensation under 38 U.S.C. § 1151 for residuals of empyema. In March 2018, the Veteran and the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter was previously before the Board in April 2018. At that time, the Board remanded the claim for further evidentiary development. This matter was most recently before the Board in May 2019. At that time, the Board again remanded the matter for further evidentiary development, to include a VA medical opinion. 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, is remanded. Prior to his death, the Veteran contended that he developed additional disability because his condition was misdiagnosed by VA treatment providers in December 2008 and January 2009. Specifically, the Veteran contended that VA providers failed to order a chest x-ray despite his reports of coughing up blood on at least 3 occasions in December 2008. See March 2018 Transcript of Hearing, pages 3-9. The record on appeal includes a December 2008 VA telephone encounter note which indicates that the appellant called to report that 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 stated that it was only a small amount when he was clearing his throat and 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 December 23, 2008 Team Telephone Encounter Note. 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 December 29, 2008 Nursing Note. A December 2008 VA physician note recorded the Veteran’s complaints of acute sinusitis after an upper respiratory infection one week prior. It was noted 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 December 29, 2008 Physician Note. A December 2008 X-ray of the sinuses noted normal pneumatization of the frontal and axillary sphenoid and ethmoid sinuses. It was noted that no obvious air fluid levels or mucosal thickening was seen. No bony sclerotic or destructive changes were noted. See December 29, 2008 X-ray Impression Report. 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. 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 and daily bowel movements and had been sleeping well. The assessment was “rhinorrhea with sometimes cough when lying on back.” Allergy testing for pollen/allergens to the area was advised. The Veteran was instructed to continue with Flunisolide. The Veteran was given a trial of Loratadine and Atrovent nasal spray and prescribed Benzonatate for his cough. An ENT request was given at the Veteran’s request. See January 21, 2009 Physician Note. 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 reported 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 that he had some yellow productive cough which had been 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. At the time of discharge, it was noted that the Veteran’s condition was “stable, improved, and no emergent condition [wa]s present.” See January 31, 2009 R.V.M.C. Emergency Department Report. 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. Also noted was that the Veteran “may need to follow up with oncologist if doesn’t resolve with antibiotics.” The Veteran was prescribed Vicodin, Naprosyn, and Levaquin and directed to follow up with Dr. S. See February 1, 2009 R.V.M.C. Emergency Department Discharge Instructions. A February 2009 private treatment record noted that the Veteran presented for evaluation after having been seen in the emergency room. The Veteran 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 noted 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 noted that the antitussives had helped, but that 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 February 14, 2009 R.V.C.M. History and Physical Final. A February 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 February 21, 2009 Operative Note Final. 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. 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. The Board finds that the July 2019 and November 2020 VA medical opinions are 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. In that regard, the Board finds 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 the February 2009 private treatment record noting that a chest CT performed on February 1, 2009 demonstrated a 4.5 cm upper lobe mass and pleural thickening or pleural fluid at the base of the left lower lobe. A subsequent February 2009 thoracentesis of the pleural fluid which was noted on the February 1, 2009 chest CT confirmed empyema. While the Board greatly regrets further delay, additional remand is required for an addendum medical opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the matter is REMANDED for the following action: 1. Refer the VA claims file to a different clinician with appropriate expertise to address the Veteran’s claim of entitlement to compensation under 38 U.S.C. § 1151 for residuals of empyema. The clinician is requested to review the claims file in its entirety including all VA and private treatment records. Then, the physician should respond to the following: (a). Is it at least as likely as likely as not (50 percent probability or greater) 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? (b). If additional disability exists, is it at least as likely as not (50 percent or greater) 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 addressing this question, the clinician should comment on the VA treatment provider’s failure to order a chest x-ray when the Veteran reported coughing up blood, as noted in at least three VA treatment records in December 2008. In determining whether the proximate cause of a disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, please discuss if VA failed to exercise the degree of care that would be expected of a reasonable health care provider. (c). If additional disability exists, is it at least as likely as not (50 percent or greater) that such disability was due to an event not reasonably foreseeable? In addressing this question, the clinician should comment on the VA treatment provider’s failure to order a chest x-ray when the Veteran reported coughing up blood, as noted in at least three VA treatment records in December 2008. The clinician should also comment on 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, as well as the February 2009 private treatment record noting that a chest CT performed on February 1, 2009 demonstrated a 4.5 cm upper lobe mass and pleural thickening or pleural fluid at the base of the left lower lobe. In addition, the clinician should comment on the subsequent February 2009 thoracentesis of the pleural fluid which was noted on the February 1, 2009 chest CT which confirmed empyema. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ruddy, 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.