Citation Nr: 21022295 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 18-06 583 DATE: April 15, 2021 ORDER Entitlement to VA compensation benefits under 38 U.S.C. § 1151 for residuals of neck port placement during treatment for cancer, to include hepatitis C, is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has an additional disability caused by recklessness, negligence, or similar instances of fault by VA care. VA exercised the degree of care that would be expected of a reasonable health care provider in rendering treatment. CONCLUSION OF LAW The criteria for entitlement to VA compensation benefits under 38 U.S.C. § 1151 for residuals of neck port placement during treatment for cancer, to include hepatitis C, have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Navy from July 1966 to August 1970. He testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in October 2019. Entitlement to VA compensation benefits under 38 U.S.C. § 1151 for residuals of neck port placement during treatment for cancer, to include hepatitis C. The Veteran contends that he contracted hepatitis C as a result of a port put into his neck during treatment for cancer. He further contends that the port was negligently placed. Specifically, he has stated: “it was put in negligently because the whole time I’ve had pain. I still have pain from this area here all through my face. It feels like something like this is on my face all of the time with the soreness and the pain. It never stops 24 hours a day.” Under 38 U.S.C. § 1151, if VA hospitalization or medical or surgical treatment results in additional disability or death that is not the result of the claimant’s own willful misconduct or failure to follow instructions, compensation may be awarded in the same manner as if the additional disability or death were service connected. See 38 C.F.R. §§ 3.361. In order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. 38 C.F.R. § 3.361(a). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran’s additional disability. Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment 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). 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 proximately caused a Veteran’s additional disability, it must be shown that the hospital care or medical or surgical treatment caused that disability; and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care or medical or surgical treatment without the Veteran’s informed consent. In evaluating the Veteran’s claim, the Board first must consider whether the evidentiary record shows that he has additional disability that was caused by negligent VA medical treatment. See 38 U.S.C. § 1151(a)(1). The evidence of record establishes that the Veteran was diagnosed with diffuse large B-cell lymphoma and treated with chemotherapy in 2011 with no recurrence of the tumor. See December 2011 VA Treatment Records. The Veteran is competent to report that he experiences pain in the location where he received the port for his chemotherapy. See October 2019 Board Hearing Transcript, pg. 6. However, the preponderance of the evidence is against finding that the pain the Veteran now experiences was as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. Instead, the evidence shows that VA exercised the degree of care that would be expected of a reasonable health care provider in rendering treatment for the Veteran’s lymphoma. A VA medical opinion addressing the Veteran’s claim was obtained in June 2017. The examiner noted that following chemotherapy, a PICC line was removed from the Veteran’s right arm and he was scheduled for placement of a port. The Veteran subsequently had a port placed based on the need for long-term chemotherapy access. The records note that there were no complications following placement of the port; the Veteran was observed for one hour and discharged home at the time of placement. VA treatment records from January 2015 note the Veteran’s history of right neck pain, ear pain, right “sinus” fullness, drainage from his nose to his ears, and irritation with wind in his right ear. The examiner noted that the Veteran had previously been seen and a diagnosis of TMJ was rendered. However, the Veteran was adamant that it was not TMJ and that he had a “carcinoma in his sinus.” CT of the neck performed in November 2014 showed left maxillary retention cyst with all sinuses otherwise clear. The impression was “no suspicious lymphadenopathy or pharyngeal lesions.” Regarding the Veteran’s contentions that he contracted hepatitis C as a result of his chemotherapy, the examiner noted the Veteran’s April 2017 statement, and stated: He did not have any of the known complications of insertion of the PICC line including pneumothorax (air in the lung), skin nor lung infection, nor sepsis from an infected line. He further confuses developing hepatitis C from the treatment he received when in fact he has preexisting hepatitis C that became known after his immunocompromised condition. The examiner ultimately opined that any complications that the Veteran feels resulted from the PICC procedure are not substantiated by medical information. Further, even assuming any complications, as much was not as a result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of VA. As noted by the Board in its December 2020 decision, the June 2017 opinion was obtained from a clinician from the same VA Medical Center that conducted the Veteran’s surgery. Although this alone does not render an opinion inadequate, the Board sought an additional “second opinion” from a VA Medical Center separate and apart from the Houston VAMC. Such opinion was obtained in December 2020 from a physician located at the Saint Paul, Minnesota VAMC. The examiner stated: Review of VA diagnosis and treatment was appropriate and timely, accepted protocols were followed, and the standard of care was met in this case. It is less likely than not the claimed condition was caused by or became worse as a result of the VA treatment . . . Review of the medical record shows the Veteran was diagnosed and treated for diffuse large cell B lymphoma. The Veteran had a PortAcath placed for long term chemotherapy. The medical record shows no complications or unexpected events surrounding the placement or use of the PortAcath. The Veteran’s lymphoma was successfully treated. The Veteran has had extensive and rigorous evaluation of neck pain including neurological evaluation and MRI, CT scan and EMG. Review of VA diagnosis and treatment was appropriate and timely, accepted appropriate protocols were followed and timely consults were obtained, [and] the standard of care was met in this case. The Board finds these medical opinions, when taken together, highly probative. The examiners thoroughly reviewed the Veteran’s entire claims file and provided a clear conclusion with supporting rationale. As noted, because the Veteran’s surgery was performed at the Houston VAMC, the Board sought additional medical opinion from an examiner who independent of the Houston VAMC. However, both examiners reached the same conclusion. Both examiners found that the standard of care was met, and VA did not fail to exercise the degree of care that would be expected of a reasonable health care provider. Indeed, both examiners noted that the Veteran received extensive evaluation for his neck pain following his chemotherapy. The VA clinicians afforded the Veteran an MRI, CT scan, and EMG to attempt to ascertain the cause of his reported neck pain. There are no medical opinions of record indicating that the Veteran has an additional disability that was proximately caused by VA treatment. The Board is sympathetic to the Veteran’s contentions. Indeed, the Board does not dispute that following his surgery, he began to experience pain in his face and neck. However, in order to warrant compensation under 38 U.S.C. § 1151, the evidence must show that the additional disability is a result of improper care, negligence, or similar instances of fault. The weight of the medical evidence does not support causation and the Veteran himself has not demonstrated that he has the necessary medical expertise to provide an opinion regarding the standard of care for medical professionals. Put simply, although the Veteran is competent to state he has pain, he is not competent to attribute that pain to improper care on behalf of VA. Further, to the extent he contends that he was given hepatitis C as a result of his chemotherapy, the Board finds his lay statements are outweighed by the medical evidence of record. Specifically, both examiners have noted that the Veteran’s hepatitis C predated his chemotherapy and explained that the hepatitis became known because the Veteran’s cancer compromised his immune system. This rationale, coupled with the Veteran’s lack of symptomatology prior to his cancer diagnosis, explains why an earlier diagnosis of hepatitis C was not noted. As the record does not demonstrate that the Veteran has an additional disability that was caused by VA treatment for lymphoma, his claim for compensation under 38 U.S.C. § 1151 must be denied. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.