Citation Nr: 21013702 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 10-24 183 DATE: March 10, 2021 REMANDED Entitlement to service connection for gastric adenocarcinoma (stomach cancer), to include under 38 U.S.C. § 1151, for the purpose of accrued benefits is remanded. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran had active military service from March 1972 to July 1988. Sadly, the Veteran passed away in August 2019. The Veteran’s surviving spouse has been substituted as the Appellant. The Veteran appeared at an August 2014 hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. This matter was previously before the Board in March 2019 and was remanded for further development. Entitlement to service connection for gastric adenocarcinoma (stomach cancer), to include under 38 U.S.C. § 1151 for the purpose of accrued benefits In August 2016, the Veteran submitted a VA Form 9 arguing that VA was negligent in the treatment of his stomach cancer. Specifically, he asserted VA failed to timely diagnose and properly treat his condition. A veteran who suffers disability caused by hospital care, medical or surgical treatment, or examination provided by a VA employee or in a VA facility is entitled to compensation for the additional disability “in the same manner as if such additional disability were service-connected” if the additional disability was not the result of willful misconduct and was proximately caused by “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault” or “an event not reasonably foreseeable.” 38 U.S.C. § 1151 (a)(1)(A), (B); 38 C.F.R. § 3.361 (a); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151 (a). First, there must be evidence of additional disability, as shown by comparing the veteran’s condition before and after the VA medical care in question. 38 C.F.R. § 3.361 (b). To determine whether a veteran has additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran’s condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the veteran’s willful misconduct. 38 U.S.C. § 1151 (a); 38 C.F.R. § 3.301 (c)(3). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the veteran by VA. 38 C.F.R. § 3.361 (c). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. 38 C.F.R. § 3.361 (c)(1). Merely showing that a veteran received care, treatment, or examination and that the veteran has additional disability does not establish cause. Id. The Federal Circuit Court has held that the causation element of section 1151 is satisfied not only when an injury is “directly” or “actually” caused by the actions of VA employees, but also where an injury occurs “in a [VA] facility” resulting from VA’s negligence. Viegas, 705 F.3d at 1378. Additionally, hospital care, medical or surgical treatment, or examination 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. 38 C.F.R. § 3.361 (c)(2). The factual elements necessary to support a claim under section 1151 based on failure to diagnose or treat a preexisting condition may vary with the facts of each case and the nature of the particular injury and cause alleged by the claimant. As a general matter, however, entitlement to benefits based on such claims would ordinarily require 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 veteran suffered disability or death that probably would have been avoided if proper diagnosis and treatment had been rendered. See Roberson v. Shinseki, 607 F.3d 809, 817 (Fed. Cir. 2010). Moreover, additional disability caused by a veteran’s failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361 (c)(3). Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be 1) carelessness, 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 2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361 (d). With regard to carelessness or negligence, 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 was the proximate cause of 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. See 38 C.F.R. § 3.361 (d)(1). With regard to reasonable foreseeability, whether 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 foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361 (d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). Thus, section 1151 contains two causation elements; a veteran’s disability must not only be “caused by” the hospital care or medical treatment he received from VA, but also must be “proximate[ly] cause[d]” by the VA’s “fault” or an unforeseen “event.” 38 U.S.C. § 1151 (a)(1). In the instant appeal, the Appellant contends that the Veteran’s stomach cancer was not properly and timely diagnosed by his VA physicians. Alternatively, it is contended that the cancer was caused by contaminated water at Camp Lejeune. As noted above, this matter was previously before the Board in March 2019 and was remanded for further development. Specifically, the Board remanded this matter to obtain outstanding VA treatment records and to obtain a medical opinion regarding the Veteran’s claim that the VA failed to timely diagnose and treat his stomach cancer which he claimed lead to additional disability. Subsequently, in October 2020, a medical opinion was obtained. The VA examiner stated that the Veteran’s stomach cancer was initially diagnosed via a December 9, 2008 endoscopy (which was undertaken for GERD like symptoms) which demonstrated presence of a large, fungating, infiltrative and ulcerated mass which was biopsied and demonstrated the presence of adenocarcinoma. The Veteran was then treated with a subtotal gastrectomy with extended lymphadenectomy. The October 2020 examiner opined that the Veteran’s diagnostic test (endoscopy with associated biopsy) was treatment (subtotal gastrectomy) represent the standard of care. Additionally, the examiner stated that the diagnostic testing and treatment were done “in an expedited fashion and without delay.” Furthermore, the examiner stated that there is no basis to suggest that the Veteran’s condition was caused by, or became worse due to VA treatment or that additional disability resulted from carelessness, negligence, lack of skill, etc. The examiner noted that no additional disability resulted from an event that could have been foreseen by a reasonable healthcare provider, or that there was failure on the part of the VA to treat the claimed disease or allowed it to progress. However, in the Veteran’s August 2016 statement, he noted that he began having symptoms in February 2008 while being treated by the VA. He stated that he had stomach pains and had to intentionally vomit to relieve the pain. The Veteran was given a diagnosis of diabetic acid reflux and was only given medication throughout 2008. However, the Veteran stated that the medication did not work and that as a result he lost 70 pounds. The Veteran contended that it was not until he and his spouse demanded diagnostic testing that a diagnosis was rendered. The Board finds that another addendum opinion is warranted for the examiner to specifically address the Veteran’s August 2016 contention that his stomach cancer was not timely diagnosed as he first began seeking treatment for symptoms in February 2008 and did not receive diagnostic testing until December 2008. In addition, the Board notes that in a Joint Motion for Partial Remand approved by the Court of Appeals for Veterans Claims in October 2020, it was noted that a prior denial by the Board of service connection for gastric cancer was based in part on a November 2015 VHA opinion and subsequent addendum in which the examiner said that the Veteran “does not have over 50% probability that his exposures in the past could have caused his Gastric Adenocarcinoma.” The Court found that this was not adequate because it did not consider the possibility that the evidence was in equipoise. Accordingly, another addendum opinion is required. The matters are REMANDED for the following action: 1. Obtain a medical opinion in order to adjudicate the Appellant’s claim for accrued benefits for service connection for stomach cancer under 38 U.S.C. § 1151. The designated medical professional (preferably an oncologist or one specializing in gastrointestinal disorders) must review the entire claims file, to include a copy of this remand, in its entirety. Specifically, the Board draws the medical professional’s attention to the Veteran’s assertions on his August 2016 VA Form 9 that VA failed to timely diagnose and treat his stomach cancer (Veteran’s statement that he began seeking treatment for symptoms in February 2008 and did not receive diagnostic testing until December 2008). Following a complete review of the evidence of record, the designated medical professional is requested to provide the following opinions: Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran suffered additional disability due to VA’s failure to properly treat and diagnose his stomach cancer and that such additional disability was proximately caused by (1) carelessness, negligence, lack of proper skill, error of judgment, or similar instance of fault by VA, or (2) by an event not reasonably foreseeable. Why or why not? The medical professional must consider whether VA failed to timely diagnose and properly treat the disease, and whether this failure proximately caused the continuance or natural progress of the disease. The medical professional should also discuss whether VA failed to exercise the degree of care that would be expected of a reasonable healthcare provider and whether VA furnished the medical care or treatment without the Veteran’s informed consent. A complete rationale for this opinion MUST be provided. Citation to medical literature and accepted practices would be of great assistance to the Board. If the medical professional is unable to provide the opinion without resorting to speculation, he or she must indicate why this is so. Specifically, the medical professional must indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or medical professional (i.e. additional facts are required, or the medical professional does not have the needed knowledge or training). The AOJ must review the medical opinion to ensure it is adequate and comply with the Board’s remand directives. If found to be deficient in any manner, corrective action must be taken at once. 2. Obtain an addendum opinion to determine the likelihood that the gastric carcinoma resulted from exposure to contaminated water at Camp LeJeune. The opinion must address whether it is at least as likely as not (a 50 percent or greater chance) that the development of cancer was related to such exposure to contaminated water. The opinion must consider the possibility that the evidence on this question is in equipoise. 2. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mountford, 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.