Citation Nr: 22014252 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-22 305 DATE: March 11, 2022 ORDER Compensation under 38 U.S.C. § 1151 for throat cancer is denied. FINDING OF FACT The evidence does not demonstrate that the Veteran's throat cancer was caused by VA medical care or treatment. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for throat cancer from VA medical care or treatment are not met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1975 to May 1976. The Veteran testified at a Decision Review Officer (DRO) hearing in August 2016. She additionally testified before a Veterans Law Judge (VLJ) in March 2021. Copies of the transcripts are of record. This case was previously before the Board in July 2021 when the claim was remanded for additional development. A December 2021 supplemental statement of the case was issued and the claim is once again before the Board. The Veteran contends that the VA was negligent by not diagnosing her throat cancer prior to 2015. In her March 2021 hearing testimony, she states that in 2005 she started telling her VA medical providers in New York that she was having throat discomfort and swallowing problems. She specifically identified three such medical providers- Bronx VA, Montrose VA, and Castle Point VA. She was not diagnosed with throat cancer until April 2015, when private medical provider, Dr. RDM, referred her for a CAT scan at Mount Sinai Hospital. She was later treated for throat cancer at Sioux Falls VA, Sandor Hospital in Sioux Falls, and West Palm Beach VA. Hundreds of pages of VA and private treatment records, documenting her extensive treatment, have been associated with the claims file and reviewed. 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). The mere fact that the Veteran received care, treatment, or examination and has an additional disability does not establish actual causation. Evidence must show that VA hospital care, medical or surgical treatment, or examination resulted in additional disability. 38 C.F.R. § 3.361(c)(1). Medical treatment cannot cause the continuance or natural progress of a disease or injury for which the 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 the veteran's additional disability; and either (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. 38 C.F.R.§ 3.361(d)(1). The question for the Board is whether it is at least as likely as not that the Veteran sustained additional disability caused by VA's failure to timely diagnose and properly treat her throat cancer. The Board concludes that the evidence weighs against finding that the proximate cause of her throat cancer 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 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. The evidence of record does not show that VA failed to timely diagnose and properly treat throat cancer proximately causing the continuance or natural progress of the disease. 38 C.F.R. § 3.361(c)(2). Several opinions have been obtained regarding this claim. In a May 2016 VA medical opinion, the examiner summarized the available treatment records. He then noted that his review of the documentation found no misdiagnosis, failure to treat or inappropriate/inadequate medical care from January 2011 to December 2011 regarding the Veteran's diagnosed throat cancer for several reasons. He noted that despite the Veteran's statement that she had experienced symptoms of cancer for two years, there is no documentation of such recurrent complaints between January 2011 and December 2011. The examiner noted that during this time period the only symptom reported that could reasonably have been caused by the later-diagnosed throat cancer would be dysphagia, for which an esophagogastroduodenoscopy (EGD) was ordered. The examiner noted that the Veteran declined to undergo this test and declined to be rescheduled for a later date for EGD testing and would not consent to undergo EGD testing until several years later. It was noted that the later performed EGD would be normal and if the EGD had been performed and was negative in 2011, additional testing to find the underlying cause of dysphagia could have led to an earlier diagnosis if the cancer was discoverable at that time. The examiner noted that no other complaints, symptoms or findings reported to her medical providers during the January 2011 to December 2011 time period can reasonably be considered sufficiently suspicious of oropharyngeal cancer to be considered inappropriate or inadequate care failing to lead to an earlier diagnosis. Put another way, the examiner noted that a reasonable health care provider could not have foreseen a diagnosis of oropharyngeal cancer from the symptoms the Veteran was complaining of between January 2011 and December 2011 when the complaint of dysphagia is factored out, since the Veteran declined to be tested for this complaint during that time period. Therefore, the examiner concluded that there was no failure to timely diagnose or treat symptoms of throat cancer. The examiner concluded that the Veteran's residuals of throat cancer are not caused by or a result of misdiagnosis and failure to treat as a result of surgery and/or inappropriate medical care between January 2011 and December 2011. Several medical studies were cited. Numerous medical records were subsequently associated with the claims file. A December 2016 VA medical opinion was completed (by the May 2016 examiner). The examiner noted that a review of the additional documentation reflects no misdiagnosis, failure to treat or inappropriate/inadequate VA Medical care from January 2011 to December 2011 regarding the Veteran's diagnosed throat cancer. The examiner noted that his rationale was outlined in his report dated May 2016. He noted that the vast majority of the 7000 plus pages submitted for review are from several to 4 or 5 years after the time period in question and do not change the opinions or rationale of his report of May 2016. The examiner noted that the Veteran's throat cancer was not discoverable by the VA physicians or her non-VA physicians until several years later (late 2013/early 2014) when a submandibular mass became palpable on examination. Not immediately removing the Veteran's thyroid for a biopsy report of a "follicular neoplasm" would seem to be a reasonable approach based on the available literature. The examiner noted that how much, if at all, the prior history of treatment of Graves Disease would alter the recommendation for observation vs. prompt removal of the follicular neoplasm is not known to his examiner and is out of his area of medical expertise. Several medical studies were cited. In an additional January 2017 opinion, the same examiner noted that there is no research to cite that would match all of the variable/particulars of this Veteran's case. If the Veteran was appropriately counseled regarding the risks/benefits of surgery vs. observation then either approach would be acceptable, in his medical opinion, irrespective of the history of Grave's disease. Based on the VA examiner's statement in December 2016, that some information was outside his area of medical expertise and the limitation of the time period he was looking at in his analysis, the Board accords lower probative value to his May 2016, December 2016, and January 2017 medical opinions. The Board remanded the claim in July 2021, in part, to obtain an additional medical opinion. A different examiner reviewed the medical records and additionally conducted an examination via approved video telehealth in November 2021. The examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's throat cancer was caused by or became worse as a result of VA treatment at issue. The examiner rationalized that the Veteran is uncertain on exact dates however, in her August 2016 DRO hearing she stated that the specific condition began at least as early as 2011. The Veteran reported that the problems she began having at that time were related to her throat cancer. The examiner noted that the Veteran saw multiple clinicians in different specialties at the VA as well as non-VA facilities, which in the examiner's opinion interferes with chronicity and continuity of care and confounds and diminishes wrongdoing on the part of VA attending personnel. The examiner noted that the evidence indicates missed appointments and the refusal of the Veteran to have recommended procedures which in the examiner's opinion confounds and diminishes wrongdoing on the part of the VA attending personnel. Based on a review of all of the evidence, the examiner opined that it is less likely than not that the Veteran's throat cancer was caused by or became worse as a result of VA treatment at issue. The examiner additionally opined that it is less likely than not that the Veteran's throat cancer resulted from carelessness, negligence, lack or skill, or similar incidence of fault on the part of the VA attending personnel. The examiner also opined that it is less likely than not that the throat cancer resulted from an event that could have been reasonably foreseen by a reasonable healthcare provider. The examiner acknowledged in the medical community at large that compliance in evaluation and treatment for a condition is needed for proper diagnosis and treatment, which makes it less likely that the throat cancer resulted from an event that could have been reasonably foreseen by a reasonable healthcare provider. Finally, the examiner noted that it is less likely than not that throat cancer resulted from failure on the part of the VA to timely diagnose and/or properly treat the claimed disease or disability that allowed the disease or disability to continue or progress. The examiner rationalized that it is acknowledged in the medical community at large that compliance in evaluation and treatment for a condition is needed for proper diagnosis and treatment, which makes it less likely than not that the throat cancer resulted from failure on the part of the VA to timely diagnose and/or properly treat the claimed disease or disability that allowed the disease or disability to continue or progress. There are no contradictory opinions of record. While the Veteran believes her throat cancer was caused by a failure on the part of VA to timely diagnose and/or properly treat the claimed disease, she is not competent to make this determination since it requires medical knowledge and training on throat cancer screening, detection, and treatment options along with other medical considerations within the knowledge of medical professionals and not lay persons. These matters are medically complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives the most probative weight to the November 2021 VA medical opinion because it was prepared by a skilled, neutral medical professional after review of the relevant medical records and contains a complete rationale for the conclusions reached. The examiner opined that the Veteran's throat cancer was not caused by VA treatment and reasoned that throat cancer is an event that could not have reasonably been foreseen by a reasonable healthcare provider. In short, the record is replete with medical opinions that demonstrate that the Veteran's throat cancer was not due to VA treatment and was not due to VA's 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. Nor has the Veteran demonstrated by any competent evidence of record that VA failed to properly diagnose and treat her throat cancer condition. Accordingly, compensation under 38 U.S.C. § 1151 for throat cancer must be denied at this time based on the evidence of record. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.