Citation Nr: 22017956 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 15-33 339 DATE: March 27, 2022 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for status post right lower lobe lobectomy (claimed as removal of part of lung) is denied. FINDING OF FACT The evidence of record weighs against a finding that the Veteran has an additional disability of status post right lower lobe lobectomy (claimed as removal of part of lung) that was proximately caused by any error in judgment, carelessness, negligence, or similar instance of fault on the part of VA, or an event that was not reasonably foreseeable as a result of VA medical treatment. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 for status post right lower lobe lobectomy (claimed as removal of part of lung) are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to January 1970. The Veteran was scheduled for a virtual hearing before the Board on February 4, 2022. He was notified of the date, time and location of the hearing in an October 2021 letter; however, he failed to appear. This letter was not returned as undeliverable and was received by the Veteran's representative. The Veteran did not submit a request for postponement prior to the Board hearing or a written motion for a new hearing date within 15 days following the scheduled hearing date. Accordingly, the Veteran's hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (d). Entitlement to compensation under 38 U.S.C. § 1151 for status post right lower lobe lobectomy (claimed as removal of part of lung) When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. Under 38 U.S.C. § 1151, there must be a showing of carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on part of VA or evidence of an event not reasonably foreseeable in order to establish entitlement to compensation. In essence, there are three elements required to establish benefits under 38 U.S.C. § 1151. Specifically, the veteran must show: (1) additional disability which was caused by VA hospital care, medical or surgical treatment or examination; (2) a causal nexus between the VA treatment (medical, surgical or hospitalization), an examination, or vocational rehabilitation under chapter 31 and the additional disability; and (3) a finding of fault or a finding of an unforeseen circumstance. Each element is a prerequisite for the subsequent element. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To determine whether a veteran has an 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 program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. See 38 C.F.R. § 3.361 (b). To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. 38 C.F.R. § 3.361 (c)(1). Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. Id. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose or properly treat the disease proximately caused the continuance or natural progress. 38 C.F.R. § 3.361 (c)(2). Proximate causation can be established when it is shown that VA hospital care, medical or surgical treatment, or examination caused the veteran's additional disability or death and that: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or the veteran's representative's informed consent. 38 C.F.R. § 3.361 (d). Proximate causation can also be established when it is shown that a veteran's additional disability or death was an event that was not reasonably foreseeable. 38 C.F.R. § 3.361 (d)(2). This fact is to be determined based on what a reasonable health care provider would have foreseen. Id. 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. Id. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 3.361 (d)(1)(ii) and § 17.32. In June 2013, the Veteran submitted a claim for entitlement to compensation benefits pursuant to 38 U.S.C. § 1151. The Veteran asserts that he suffered from the additional disability of status post right lower lobe lobectomy (claimed as removal of part of lung) as a result of treatment received from the Boston VA Healthcare System and Tobey Hospital. In his VA Form 9, the Veteran contended that the VA failed to properly assist him in developing his claim. He stated that he never reviewed the medical evidence he submitted, did not properly consider the new evidence that he submitted in support of his claim, and never properly considered the evidence in the claims file. Factual History The Veteran's treatment records report that he had a history of obstructive pulmonary nodules and bladder cancer with transurethral resection of a bladder tumor. The Veteran had undergone video assisted thoracoscopic surgery (VATS) in March 2007 for pulmonary nodules showing normal parenchyma with no metastatic diagnosis. In November 2012, a CT scan of the thorax showed a new right lower lobe nodule. The new right lower lobe nodule (1 cm), which was not present on a CT in September 2010, was thought to be of concern for malignancy. Records indicate that the nodule was thought to be a potential primary tumor, rather than metastatic disease, due to the appearance and the noninvasive nature of his bladder biopsy. The Veteran was informed by his physicians that the location of the lesion was not amenable to imageguided biopsy. The consensus was to proceed with a VATS wedge resection of the area. The Veteran was informed of options regarding treatment, including watchful waiting with repeat imaging or surgical resection. The physician reported that the Veteran desired to proceed with surgical resection. See December 21, 2012 Consult Note. On December 21, 2012, the Veteran completed a VA Boston Healthcare system Consent for Clinical Treatment/Procedure form for the following procedures: flexible bronchoscopy with possible biopsy and interventions, exploratory thorascopy with possible interventions, thorascopic lobectomy, and an open segmentectomy. The informed consent form stated that the procedure would be performed on the right lower lobe of his lung and that it was being performed due to possible lung cancer. A description of each procedure was provided. The portion regarding the thorascopic lobectomy states that this procedure involves removing a lobe of the lung in order to treat abnormalities or disease in the lung. The portion regarding the open segmentectomy states that this procedure involves removing a small part of the lung. The surgeon will cut into the side of the chest in order to gain access to the lung. The surgeon will then cut away the portion of the lung where the cancer is found. Some of the healthy tissue around the cancer will also be removed. An operative note indicates that the Veteran underwent a right VATS that included lower lobe wedge resection of the right lung at the West Roxbury VA Medical Center (VAMC) on December 26, 2012. This operation included the partial removal of the Veteran's lower right lung. Analysis While the Veteran contends that the VA was careless and negligent in the treatment provided to him regarding his treatment that resulted in the resection of his right lung during the course of his VA treatment on December 26, 2012 at the West Roxbury VAMC, the probative evidence of record does not support that the Veteran suffered additional disability that resulted from 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. The Board finds probative the consultation report from December 21, 2012, where the Veteran's medical history was considered, and the Veteran was provided the option of watchful waiting with repeat imaging or surgical resection. The Veteran was informed that the location of the lesion was not amenable to imageguided biopsy and, while the lesion found on the November 2012 CT was not thought to be metastatic disease from the bladder, there was a concern that the lesion could be a primary cancer of the lung. The evidence indicates that the Veteran chose to undergo surgical resection, rather than watchful waiting, and completed an informed consent form that informed him that at all (thorascopic lobectomy) or part (open segmentectomy) of the right lung would be removed. The Veteran then underwent resection of the right lung that resulted in the partial removal of the Veteran's lower right lung. None of the competent evidence of record, including the treatment records associated with the claims file from the Boston VA Medical System, the Beth Israel Deaconess Medical Center, and the Brigham and Women's Hospital, reports that the Veteran's lower lobe wedge resection of the right lung, resulted from 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. Therefore, the Board finds that the Veteran does not have an additional disability that was caused by any error in judgment, carelessness, negligence, or similar instance of fault on the part of VA, or an event that was not reasonably foreseeable as a result of VA medical treatment. As such, compensation under the provisions of 38 U.S.C. § 1151 is not warranted for any claimed disability. The Board has considered the lay statements of the Veteran and his representative that the care provided by VA was negligent or failed to meet a reasonable standard of care. Lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the lay testimony as to the appropriate levels of medical care provided is outside the scope of the competence of lay witnesses as it relates to a complex medical issue; as such, the Board finds that the lay statements provided do not have probative value. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). For these reasons, the weight of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Compensation pursuant to 38 U.S.C. § 1151 for status post right lower lobe lobectomy resulting from VA treatment is denied. Duties to Notify and Assist There is no indication, and the Veteran has not contended, that the VA failed to properly notify him regarding his claim; as such, the duty to notify has been met. With regard to the Veteran's arguments that the VA has failed to assist him in the development of his claim, the Board notes that medical records from VA medical facilities and the private facilities that the Veteran submitted appropriate authorization forms have been obtained. To the extent that additional records have not been associated with the claims file, the Veteran was informed of additional information needed to develop his claim in a November 2014 letter. The Veteran failed to respond to this letter and has not otherwise properly identified and provided necessary authorizations for medical facilities and dates of treatment other than those associated with the claims file. Notably, dates of treatment at Tobey Hospital were not provided by the Veteran. The Board notes that the duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran was not provided a VA examination with respect to his claim for 38 U.S.C. § 1151 compensation for status post right lower lobe lobectomy. However, in the absence of any competent evidence indicating that the Veteran's status post right lower lobe lobectomy was the result of any error in judgment, carelessness, negligence, or similar instance of fault on the part of VA, or an event that was not reasonably foreseeable as a result of VA medical treatment, a VA examination/medical opinion is not required. 38 U.S.C. § 5103A(d); see also Trafter v. Shinseki, 26 Vet. App. 267, 280 (2013). Accordingly, the Board finds that the duty to assist has also been met. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.M. Johnson, 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.