Citation Nr: 21013486 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-48 637 DATE: March 9, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a right lung condition, claimed as damage to right lower lobe, due to radiation treatment, is denied. Entitlement to service connection for a right lung condition, claimed as damage to right lower lobe, due to radiation treatment, to include on a direct basis and as secondary to his service-connected disabilities is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s right lung condition, claimed as damage to right lower lobe, due to radiation treatment was a qualifying additional disability for 38 U.S.C. § 1151 purposes; lung cancer was not caused or aggravated by VA medical care to include any failure to timely diagnose and/or treat the underlying condition. 2. A right lung condition, claimed as damage to right lower lobe, due to radiation treatment, is not related to the Veteran’s active service and is not secondary (caused or aggravated) to service-connected disability. CONCLUSIONS OF LAW 1. The criteria for compensation under 38 U.S.C. § 1151 for right lung condition, claimed as damage to right lower lobe, due to radiation treatment are not met. 38 U.S.C. §§ 1151, 5107(b), 5121A; 38 C.F.R. § 3.361. 2. The criteria for entitlement to service connection for a right lung condition, claimed as damage to right lower lobe, due to radiation treatment, to include on a direct basis and as secondary to his service-connected disabilities have not been met. 38 U.S.C. §§ 1110, 5121; 38 C.F.R. §§ 3.303, 3.310, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1963 to December 1965. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded the appeal to the RO for further development. In January 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. 1. Entitlement to compensation under 38 U.S.C. § 1151 for a right lung condition, claimed as damage to right lower lobe, due to radiation treatment. The Veteran contends that the VA Medical Center in Cincinnati, Ohio, was negligent in failing to properly diagnose and treat the Veteran’s fibromatosis. The Veteran also contends that VA personnel erred in referring the Veteran to a civilian medical center for treatment, and both facilities failed to follow the appropriate standard of care. The question for the Board is whether it is at least as likely as not that the Veteran’s right lung condition, claimed as damage to right lower lobe, due to radiation treatment was caused by VA medical care; and the proximate cause of the disability or death was either (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the care, or (b) an event not reasonably foreseeable. The evidence indicates that the Veteran has been diagnosed with elevated right hemi-diaphragm resulting in restrictive lung disease. The Board concludes that, while the Veteran may have suffered an additional right lung condition, claimed as damage to right lower lobe, due to radiation treatment, the preponderance of the evidence weighs against a finding that VA care caused or substantially contributed to its or that VA failed to timely diagnose and properly treat the disease. 38 C.F.R. § 3.361(c); Loving v. Nicholson, 19 Vet. App. 96, 100 (2005); Roberson v. Shinseki, 607 F.3d 809, 817 (Fed. Cir. 2010). Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death 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 additional disability if (1) the disability or death was not the result of the veteran's willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) the proximate cause of the disability or death was (A) carelessness, 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. 38 U.S.C. § 1151; 38 C.F.R. § 3.361; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). Failure in Treatment / Delay in Diagnosis Theory A June 2020 VA medical opinion reflects that the Veteran was initially diagnosed with fibromatosis at a VA hospital. Once diagnosed, the Veteran was referred to the Barrett Cancer Center for radiation treatments. The June 2020 VA physician reviewed the medical evidence, to include VA treatment records and Barrett Cancer Center treatment records, and found that it is less likely as not the Veteran’s treatment received in connection with his cancer was the result of the attending VA personnel failure to follow the appropriate standard of care. The June 2020 VA physician opined that Review of VA diagnosis and treatment was appropriate and timely, accepted appropriate protocols were followed, and the standard of care was met in this case. It is less as likely as not the claimed condition was caused by or became worse as a result of the VA treatment, additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel or additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. Regarding diagnosis and treatment, the June 2020 VA physician opined that pulmonary consults and followups have been part of the record since the 1990’s. The recurrent nature of fibromatosis in 1990’s was and is even now considered to have primary and or post-surgery radiation therapy as part of the armamentarium of therapy. UPTODATE: LIT SEARCH Radiation therapy - RT is an effective primary therapeutic option for desmoid tumors in patients who are not good surgical candidates, those who decline surgery, and those for whom surgical morbidity would be excessive. The time to regression after RT alone is often quite long and several years may elapse before regression is complete. The June 2020 VA physician also opined that The right elevated diaphragm is possible to be etiology due to post radiation effect but NOT CONCLUSIVELY MEETING THE 50% or greater standard....Some pulmonary notes do not specifically comment - or + or mention such and given the written documents in the 1990’s it is not clear if 100% certainty or even > or equal to 50% is shown in the c file documents now available. ALSO However it is possible also that the elevated hemi-diaphragm is NOS (not otherwise specified) in etiology in the general population; and part due to 4ppd (pack per day) of cigarettes up until 1976. ETIOLOGY therefore is not conclusively shown to be due to VA directed care. Specifically, the June 2020 VA medical opinion found that it is less likely as not the Veteran’s treatment received in connection with his cancer was the result of the attending VA personnel failure to follow the appropriate standard of care. The physician took into account the evidence of record and noted that there was no evidence that supports VA treatment contributed to the Veteran’s disability. In this case, neither the Veteran nor the appellant are competent to provide an opinion that VA’s diagnosis and treatment of the Veteran’s fibromatosis caused or substantially contributed to the Veteran’s disability as this is not susceptible to lay observation. Here, the issue is medically complex and requires knowledge of the causes of cancer and an ability to understand the relevant medical test/lab findings. Jandreau, 492 F.3d at 1377 n.4. Therefore, the lay medical opinions have no probative value. The Board has also considered the January 2021 Mayo Clinic article relating to the side-effects of radiation treatment that were submitted by the Veteran. However, general medical literature and related evidence typically provides little support for a claim unless it is accompanied by a medical opinion which favorably applies the principles of the article to the specific facts of the case. Sacks v. West, 11 Vet. App. 314, 317 (1998). There is no medical opinion applying the findings in the article to the Veteran’s case. As such, this evidence is of minimal probative value. The Board assigns greater probative value to the June 2020 VA medical opinion. The physician’s opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran has not provided a favorable medical opinion to weigh in this matter. For the reasons explained above, the Board finds that the Veteran’s right lung condition, claimed as damage to right lower lobe, due to radiation treatment are not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, or medical or surgical treatment, or the result of an event that was not reasonably foreseeable. There has been no demonstration that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that VA failed to timely diagnose and properly treat the cancers and that such proximately caused the continuance or natural progress. Indeed, the June 2020 VA opinion is to the contrary. As such, the matters of foreseeability or whether the appellant provided informed consent for this treatment also need not be discussed. See 38 U.S.C. § 1151. Negligence on the Part of a Civilian Medical Provider Theory Under the current version of § 1151, a claim cannot be based on procedures performed at a private facility even if those procedures were performed under contract with VA (i.e. fee basis care). Such care is specifically excluded from consideration under 38 U.S.C. § 1151. See 38 C.F.R. § 3.361(f)(1). In this case, the record reflects that Dr. K.R. is not a VA employee, and the surgeries referenced by the Veteran were not performed in a VA facility. Private treatment records indicate that Dr. K.R. is a private physician. These records reflect that he performed radiation treatment for the Veteran’s aggressive fibromatosis status post-resection in December 1994 and January 1995. These procedures were performed at Barrett Cancer Center, University of Cincinnati Hospital, which is not a VA facility. However, the Veteran does not contend, and the record does not reflect, that any event during this additional treatment caused additional disability to his right lung. The VA treatment records are consistent with private treatment records in that both clearly state that the radiation treatments occurred at Barrett Cancer Center. Even if some negligence or fault on the part of Dr. C.R. during the December 1994 and January 1995 radiation treatments caused additional disability, such negligence or fault cannot be the basis of a § 1151 claim because the treatment in question was performed by a private physician in a private hospital. As VA did not perform the procedures that are the basis of this claim or that VA had any legal or medical oversight of the type of treatment, the claim on this theory of entitlement must be denied. In view of the foregoing, the Board concludes that the most probative evidence of record does not show that it is at least as likely as not that Veteran’s right lung condition, claimed as damage to right lower lobe, due to radiation treatment is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, and was not the result of an event not reasonably foreseeable. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for a right lung condition, claimed as damage to right lower lobe, due to radiation treatment, to include on a direct basis and as secondary to his service-connected disabilities. The Veteran also contends that he developed an elevated right hemi-diaphragm resulting in restrictive lung disease, and damage to the right lower lobe of the lung because he was provided with cigarettes to smoke while on active duty and became a habitual cigarette smoker. See transcript, pages 14-17. He explained that he would smoke three or four cigarettes per day in service. He was not a smoker prior to entry onto active duty. Veterans are entitled to compensation from VA if they develop a disability resulting from personal injury suffered or disease contracted in line of duty. See 38 U.S.C. § 1110; see also 38 C.F.R. § 3.303. Generally, in order to establish direct service connection, three elements must be established. These elements are: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service,” which is often referenced as the “nexus” requirement. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In this case, as referenced, the evidence of record variously referenced multiple respiratory disabilities. As to an in-service event, the Veteran’s service treatment records (STRs) are silent for any respiratory complaints. The only in-service event that the Veteran has referenced that a respiratory disability could be related to is in-service smoking. In this regard, 38 C.F.R. § 3.300 provides that “[f]or claims received by VA after June 9, 1998, a disability...will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service.” See also 38 U.S.C. § 1103. As such, entitlement to service connection is expressly precluded for any disability on the basis of being attributable to a Veteran’s use of tobacco during service. There is no competent evidence of nicotine dependence beginning in service, and the Veteran is not competent to self-diagnose a nicotine dependence. Accordingly, in this case, entitlement to service connection for a respiratory disability is not warranted based on the Veteran’s in-service tobacco use. As noted, in-service smoking was the only in-service event that the Veteran or the appellant has referenced that a respiratory disability could be related to and the record otherwise does not suggest any other possible in-service events. As such, entitlement to service connection for a respiratory disability is not warranted on a direct basis. While entitlement to service connection is not warranted based on in-service tobacco use, VA’s General Counsel has held that neither 38 U.S.C. § 1103(a), nor VA’s implementing regulations at 38 C.F.R. § 3.300, bar a finding of secondary service connection for a disability related to a Veteran’s use of tobacco products after the Veteran’s service, where that disability is proximately due to a service-connected disability that is not service connected on the basis of being attributable to the Veteran’s use of tobacco products during service. See VAOPGCPREC 6-2003 (Oct. 28, 2003); see also 38 C.F.R. § 3.310. The Board notes that the evidence does not raise, nor does the Veteran assert, the issue of secondary service connection. As such, further consideration of this theory of entitlement is not warranted. The Board also notes that if a chronic disease becomes manifest to a degree of 10 percent within one year of separation from active service, it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). The record, however, does not indicate, and the Veteran and appellant have not contended, that any claimed respiratory condition manifested within one year of the Veteran’s separation from active service. As such, entitlement to service connection for a respiratory disability is not warranted based on the presumption related to chronic diseases. (continued on the next page) In sum, the Board finds that a respiratory disability is not related to the Veteran’s active service and is not secondary (caused or aggravated) to his service-connected disabilities. As such, the Board concludes that a respiratory disability was not incurred in or aggravated by active service and is not proximately due to or a result of or aggravated by a service-connected disease or injury. 38 U.S.C. §§ 1110, 5121; 38 C.F.R. §§ 3.303, 3.310, 3.1000. Accordingly, entitlement to service connection for a respiratory disability is denied. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael J. O’Connor 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.