Citation Nr: 22018142 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 18-51 827 DATE: March 28, 2022 ORDER Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of respiratory symptoms (occasional shortness of breath, coughing, wheezing) as the result of VA's failure to treat or diagnose a pulmonary embolism during a February 2004 VA hospitalization is granted. FINDING OF FACT The Veteran has additional disability of respiratory symptoms (occasional shortness of breath, coughing, wheezing) as the result of VA's failure to treat or diagnose a pulmonary embolism during a February 2004 VA hospitalization at the VA Medical Center (VAMC) in Little Rock, Arkansas. On that occasion, VA physicians failed to exercise the degree of care that would be expected of a reasonable health care provider. CONCLUSION OF LAW The criteria have been met for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for the additional disability of respiratory symptoms (occasional shortness of breath, coughing, wheezing) as the result of VA's failure to treat or diagnose a pulmonary embolism during a February 2004 VA hospitalization. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361 (2020); VAOPGCPREC 05-01 (February 5, 2001). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from July 1972 to November 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In November 2021, the Veteran testified at a Board virtual tele-hearing before the undersigned Veterans Law Judge (VLJ). The transcript of this hearing is associated with the claims file. At the November 2021 hearing, although the timeframe was not explicitly stated, it appears the Veteran was given 90 days to submit additional evidence. See 38 C.F.R. § 20.605 (2020) (formerly 38 C.F.R. § 20.709 (2018)). Near the end of the 90-day timeframe, the Veteran submitted an additional February 2022 private medical opinion pertaining to the section 1151 claim at issue. Although the Veteran did not waive his right to have the AOJ initially consider this additional evidence, there is now an automatic waiver of initial AOJ review of evidence submitted to the AOJ or to the Board at the time of or subsequent to the submission of a Substantive Appeal filed on or after February 2, 2013, such as the case here, since the Veteran's Substantive Appeal was filed in November 2018. See 38 U.S.C. § 7105(e)(1). Therefore, the Board accepts this additional February 2022 private medical opinion pertaining to the section 1151 claim for inclusion in the record and consideration by the Board at this time. See also 38 C.F.R. §§ 20.605, 20.901, 20.1305(c) (2020). Finally, on the issue of representation, in January 2019 this case was certified to the Board via a letter sent to the Veteran. In November 2021, a power of attorney (POA) was executed via VA Form 21-22, listing the American Legion as the Veteran's representative. However, one month later in December 2021, which is many months after the certification of the Veteran's appeal, a new POA was executed via VA Form 21-22a, listing Stanley D. Miller as the Veteran's new attorney. Under VA regulation, a power of attorney may be revoked at any time, and unless specifically noted otherwise, receipt of a new power of attorney constitutes a revocation of an existing power of attorney. 38 C.F.R. § 14.631(f)(1). With regard to the timeliness of this change in representation, under 38 C.F.R. § 20.1305(a), the claimant has a period of 90 days following the mailing of notice that an appeal has been certified to the Board for appellate review, during which a request for a change in representation may be submitted to the Board. But under 38 C.F.R. § 20.1305(b), after the expiration of the 90-day period, the Board will not accept a request for a change in representation unless the claimant demonstrates on motion that there was good cause for the delay. In the instant case, the Veteran submitted his new POA in favor of Stanley D. Miller in December 2021, which is untimely, in that it was submitted after the expiration of the 90-day period following certification of the appeal. Id. Regardless, at the present time, the Board is not actively soliciting motions for good cause to change a representative. Applying judicial discretion, the undersigned concludes that the recent December 2021 POA executed in favor of Stanley D. Miller, Attorney, automatically revoked all earlier POAs of record, including the one for the American Legion. See 38 C.F.R. § 14.631(f)(1). Moreover, any due process violation is not a prejudicial concern since the section 1151 claim at issue is being granted in the present Board decision. 38 C.F.R. § 20.1102 (harmless error); Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Thus, Stanley D. Miller, Attorney, is recognized as the current representative for the Veteran. I. Background Facts and Contentions The Veteran contends that he has developed additional disability of respiratory symptoms (shortness of breath, wheezing, cough) as the result of VA's failure to diagnose or treat a pulmonary embolism (blood clot) during a two-day VA hospitalization from February 12th 13th of 2004 at the VAMC in Little Rock, Arkansas. That is, the Veteran was discharged home after this VAMC hospitalization in February 2004, without the VA treating physicians performing the proper clinical testing to determine whether he had a pulmonary embolism at that time. He believes this constituted negligence on the part of the VA physicians who treated him at the VAMC in Little Rock, Arkansas in February 2004. After being discharged from the VAMC, his symptoms (chest pain, shortness of breath, and nausea) began to worsen. Three days later, he was once against hospitalized for a total of four days from February 15th 19th of 2004 at the Arkansas Heart Hospital, a private facility. However, this time, the private physicians at the Arkansas Heart Hospital properly diagnosed him with a pulmonary embolism and treated him accordingly. They advised him the Veteran could have died if he had not sought the proper treatment at this private facility for his pulmonary embolism. He was placed on Coumadin for nine months to treat his pulmonary embolism. He still requires consistent clinical monitoring to ensure that a pulmonary embolism does not reoccur. He maintains that after VA's failure to diagnose and treat him with the proper hospital protocol in February 2004, he has developed additional disability of lingering, intermittent respiratory problems including shortness of breath. See July 2004 Veteran statement; March 2017 Supplemental Claim for Compensation (VA Form 51-526b); January 2019 representative statement; March 2019 representative statement; and November 2021 Board virtual tele-hearing testimony. A pulmonary embolus is a mass of clotted blood or air brought via the blood circulation from one vessel to the lung, thus obstructing circulation. See Hayes v. Brown, 9 Vet. App. 67, 70 (1996), citing Dorland's Illustrated Medical Dictionary 1386 (28th ed. 1994). VA hospital records from his two-day VA hospitalization from February 12th 13th of 2004 at the VAMC in Little Rock, Arkansas document that the Veteran presented to the VAMC with shortness of breath, nausea, rapid heart rate, and chest discomfort. He had no prior cardiac history. In the VAMC emergency room, he described that while he was at work in February 2004, he developed a 10/10 intense, sudden onset, constant, stabbing chest pain associated with nausea and vomiting. He also exhibited shortness of breath and weakness. He experienced palpitations with rapid heartrate. His family reported that he has been at his baseline with no complaints for the prior days and weeks before February 2004. His past medical history at that time included a stroke in 2000, hypertension since the 1990s, arthritis of the knees, and a history of pancreatitis. He worked at a rock quarry. It was noted by VA physicians at the VAMC in February 2004 that a "[c]ardiac etiology of chest pain was considered of low probability." The Veteran was discharged home from the VAMC on February 13, 2004, on previous medications plus simvastatin for lipids and continuing naproxen and Darvocet for chest wall pain as well as ranitidine as needed for reflux. His chest wall pain was noted to still be present at discharge from the VAMC on February 13, 2004. Three days later, he was again hospitalized this time for four days total from February 15th 19th of 2004 at the Arkansas Heart Hospital, a private facility. His symptoms included worsening chest pain and shortness of breath. He was diagnosed with chest pain and shortness of breath secondary to multiple pulmonary emboli seen on a computed topography (CT) scan of the lungs. A private consult report from Arkansas Heart Hospital assessed that the VAMC physicians in Little Rock had failed to evaluate the Veteran for a pulmonary embolism when he was previously hospitalized for two days from February 12th 13th of 2004. His pain persisted since that time and then worsened. It was noted that he was also relatively immobile due to a previous stroke in 2000 that left him with left hemiplegic weakness. In any event, the private physicians at the Arkansas Heart Hospital placed the Veteran on Coumadin for six to nine months after his diagnosis of a pulmonary embolism. He was advised to stay off work as well. A July 2005 Social Security Administration (SSA) disability determination and transmittal indicated that the Veteran had been disabled (unable to work) since February 12, 2004 the date of his pulmonary embolism at the VAMC. However, the disabilities listed on this SSA report as causing his inability to work were osteoarthritis of the knees and chronic brain syndrome, but not specifically residuals of his February 2004 pulmonary embolism. A latter June 2006 SSA disability determination reported that the Veteran had not worked since February 12, 2004, the day of his VAMC hospitalization for a pulmonary embolism. He was 50 years of age when he stopped working. He had worked as a load bin operator in a bauxite mine and a cook's helper. After his February 2004 hospitalization for a pulmonary embolism, he started anticoagulant medications for nine months and improved. Five weeks of home health care were also ordered after his February 2004 hospitalization. His listed symptoms in June 2006 included daily severe knee pain, fatigue, weakness, dizziness, anxiety, and depression. He cannot stand or walk for more than very short periods, as he would become out of breath. His severe disabilities in June 2006 were listed by SSA as multiple bilateral pulmonary emboli, hypertension, ischemic heart disease, congestive heart failure, stroke with continued left sided weakness and facial droop, Bell's Palsy with facial paralysis, bilateral knee arthritis, and a cognitive disorder. VA and private treatment records dated from 2004 to 2017 documented occasional complaints of shortness of breath and coughing and wheezing. The Veteran uses inhalers at times. He has also been diagnosed with asbestosis, although this is not entirely clear. II. Section 1151 Law and Analysis A veteran who suffers disability resulting from hospital care or medical or surgical treatment 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 on the part of [VA] in furnishing" that treatment or "an event not reasonably foreseeable." 38 U.S.C. § 1151(a)(1)(A), (B); 38 C.F.R. § 3.361(a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 137778 (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 VA 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). 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 an additional disability does not establish cause. Id. 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). The Federal Circuit 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. 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). (In the present case, informed consent does not appear to be at issue). Thus, section 1151 contains two separate causation elementsa 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). "Proximate cause" is defined as "[a] cause that directly produces an event and without which the event would not have occurred." See Donnellan v. Shinseki, 24 Vet. App. 167, 173 (2010) (citing Black's Law Dictionary 213 (7th ed. 1999)). Section 1151 does not extend to the "remote consequences" of VA medical treatment. Brown v. Gardner, 513 U.S. 115, 119, 115 S. Ct. 552, 130 L.Ed.2d 462 (1994). The proximate cause standard for recovery for section 1151 claims is similar to the usual standard used for medical malpractice cases, which is generally to limit an actor's legal responsibility to those but-for causes which are so closely connected with the result that the law is justified in imposing liability. Ollis v. Shulkin, 857 F.3d 1338, 1343-45 (Fed. Cir. 2017) (addressing VA referral for non-VA private care). In determining whether section 1151 compensation is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). The claimant is entitled to the benefit-of-the-doubt when the competing evidence is in "approximate balance" or "nearly equal." That is, exact equipoise is not required to trigger the favorable benefit-of-the-doubt rule. Lynch v. McDonough, __ F.4th __, No. 2020-2067 (Fed. Cir. Dec. 17, 2021) (en banc). Upon review, the Veteran's claim for § 1151 compensation for the additional disability of respiratory symptoms (occasional shortness of breath, coughing, wheezing) as the result of VA's failure to treat or diagnose a pulmonary embolism during a February 2004 VAMC hospitalization is granted. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(a)-(d). The central issue in this case is whether VA medical personnel failed to timely diagnose and / or properly treat the Veteran's pulmonary embolism in February 2004, by not exercising the degree of skill and care ordinarily required of the medical profession, thereby proximately causing additional disability or allowing the continuance or natural progress of a disability which probably would have been avoided. On this point, VA hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease of 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, in order to establish a claim under 38 U.S.C. § 1151 for failure to diagnose and / or treat, the evidence must show: (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 which probably would have been avoided if proper diagnosis and treatment had been rendered. Roberson v. Shinseki, 607 F.3d 809, 817 (2010) (upholding GC's elements of a claim based on a failure to treat); VAOPGCPREC 05-01 (February 5, 2001). The Board emphasizes that under the provisions of 38 C.F.R. § 20.105 (2020) (formerly 38 C.F.R. § 19.5 (2018)), the Board, in its consideration of appeals, "is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs." See also 38 U.S.C. § 7104(c). The Board acknowledges that the above three elements necessary to establish a section 1151 claim based on VA's failure to diagnose and / or treat were delineated by VA's General Counsel in VAOPGCPREC 05-01 as part of the version of 38 U.S.C. § 1151, effective for claims filed prior to October 1, 1997. However, despite the fact that the law in effect at such time did not contain a "fault" requirement as it now does, the courts have determined that it is impossible to delineate proximate cause without speaking in terms of duty when considering a claim based on failure to diagnose, even for claims filed prior to the change in law. Roberson v. Shinseki, 607 F.3d 809, 816 (Fed. Cir. 2010), aff'g 22 Vet. App. 358 (2009). As such, there has been no real change in the standard for these claims concerning a failure to diagnose and the elements delineated by VA's General Counsel remain relevant to claims filed after October 1, 1997, such as the present appeal. At the outset, the Board finds that additional disability developed after the VAMC hospitalization for treatment of pulmonary emboli from February 12th 13th of 2004. See 38 C.F.R. § 3.361(b). In this regard, there must be evidence of additional disability, as shown by comparing the veteran's condition before and after the VA medical care in question. Id. 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 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. Id. The additional disability must also not be the result of the veteran's willful misconduct. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.301(c)(3). Specifically, after the February 12th to 13th of 2004 VAMC hospitalization for pulmonary emboli, VA and private treatment records dated from 2004 to 2017 documented additional, occasional complaints of shortness of breath and coughing and wheezing. After his February 2004 hospitalization for a pulmonary embolism, he started anticoagulant medications for nine months. Five weeks of home health care were also ordered after his February 2004 hospitalization. To this day, the Veteran requires consistent clinical monitoring to ensure that a pulmonary embolism does not reoccur. It cannot be a coincidence that a July 2005 SSA disability determination and transmittal indicated that the Veteran had been disabled (unable to work) since February 12, 2004 the date of his pulmonary embolism at the VAMC. A latter June 2006 SSA disability determination reported that the Veteran cannot stand or walk for more than very short periods, as he would be out of breath. His severe disabilities in the June 2006 SSA disability determination were listed as multiple bilateral pulmonary emboli, among many others. With regard to the existence of additional disability, the Board emphasizes that the ratings in VA's Rating Schedule are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In this respect, after the Veteran's February 12, 2004, VAMC hospitalization for pulmonary emboli, his earning capacity was clearly impacted, for a complex set of reasons, but not only due to VA's failure to diagnose pulmonary emboli. With regard to the existence of additional disability, an April 2018 VA pulmonary examination for the Veteran's 1151 claim recorded that the Veteran uses an albuterol inhaler as needed for shortness of breath. His review of symptoms was positive for dyspnea, wheezing, occasional pleuritic discomfort with deep breath, and nonproductive coughing. He is only able to walk 100 feet. In a June 2018 VA addendum medical opinion on the section 1151 claim, the VA pulmonologist who performed the earlier April 2018 VA pulmonary examination assessed that "[i]t is likely as not that the pulmonary embolism worsened over the 2 days between discharge from the Little Rock VA and admission to the outside facility." However, the VA pulmonologist ultimately concluded that there does not appear to be an additional disability present, despite the respiratory findings above. In contrast, in a February 2022 private medical opinion from a gastroenterologist for the section 1151 claim, this private physician advised that he reviewed the Veteran's medical records. This February 2022 private physician opined that although the Veteran gradually improved after his VAMC hospitalization in February 2004 for a pulmonary embolism, he continues to have "persistent shortness of breath" from same. The Board adds that some chronic conditions, although subject to active and inactive stages, can nevertheless be service connected. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994). With regard to the existence of additional disability, the Board has considered whether any preexisting shortness of breath may have been worsened or aggravated after the Veteran's VAMC hospitalization and failure to treat in February 2004 for a pulmonary embolism. VA's General Counsel has held that an additional disability resulting from aggravation of an injury by VA medical treatment / or failure to treat is to be compensated as though it were a service-connected disability. As with a service-connected disability resulting from service aggravation of a pre-existing disease or injury, section 1151 compensation should be paid for only the "additional disability," i.e., the degree of disability over and above the degree of disability existing before the aggravation by medical treatment. But importantly, as with a service-connected aggravation, that additional disability need not necessarily be of compensable degree in itself. See VAOPGCPREC 4-2001 (February 2, 2001). See also 38 C.F.R. §§ 3.322(a) and 4.22. In summary, the Board concludes that additional disability (occasional complaints of shortness of breath and coughing and wheezing) developed after the VAMC hospitalization and failure to properly diagnose / treat his pulmonary emboli from February 12th 13th of 2004. See 38 C.F.R. § 3.361(b). However, 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 an additional disability does not establish cause. Id. To that end, the Board will now address whether (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 which probably would have been avoided if proper diagnosis and treatment had been rendered. Roberson, 607 F.3d at 817 (upholding GC's elements of a claim based on a failure to treat); VAOPGCPREC 05-01 (February 5, 2001). In the present case, the Board finds that (1) VA failed to diagnose and / or treat a preexisting disease or injury, and (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. Id. In this regard, extensive Little Rock VAMC hospitalization records at the time of his February 12th 13th of 2004 VA hospitalization confirm that VA physicians failed to diagnose or assess that the Veteran was suffering from pulmonary emboli at that time. The VA physicians failed to perform the appropriate testing to determine whether the Veteran's symptoms were indicative of pulmonary emboli. Therefore, no appropriate treatment plan was put in place after his discharge home from the VAMC on February 13, 2004. A February 2004 private consult report from Arkansas Heart Hospital assessed that the VAMC physicians in Little Rock (several days earlier) had failed to evaluate the Veteran for a pulmonary embolism when he was previously hospitalized. His pain was noted to have persisted since that time and then worsened. In addition, a February 2022 private medical opinion for the section 1151 claim remarked that there was a "misdiagnosis" for a pulmonary embolism that the VAMC was responsible for in February 2004. In the June 2018 VA medical opinion for the section 1151 claim, the VA pulmonologist commented that there was a "misinterpretation of the oxygen saturation value by the medical team [at the VAMC in February 2004]," coupled with resolution of clinical symptoms, which caused them not to diagnose the Veteran with a pulmonary embolism at that time. Reading the VA opinion carefully, the VA pulmonologist did not actually dispute the "attending VA personnel's failure to follow the appropriate standard of care" during the February 12th 13th of 2004 VA hospitalization in question. It follows that the final question for consideration is whether (3) the Veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. Roberson, 607 F.3d at 817 (upholding GC's elements of a claim based on a failure to treat); VAOPGCPREC 05-01 (February 5, 2001). In other words, the final question is whether there is a proximate cause relationship between the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in its failure to diagnose and properly treat the Veteran's pulmonary embolism and the subsequent additional disability. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). In the present case, the June 2018 VA medical opinion from the VA pulmonologist concluded that there was no permanent disability after the VA physicians' "misinterpretation" of the clinical data; however, conversely, the February 2022 private physician opined that although the Veteran gradually improved after his VAMC hospitalization in February 2004 for a pulmonary embolism, he continues to have "persistent shortness of breath" after VA's failure to diagnose the pulmonary embolism at that time. As such, the Board concludes there is sufficient evidence of record to establish that VA's failure to timely diagnose and properly treat the pulmonary embolism in February 2004 proximately caused the continuance or natural progress of the disorder, resulting in additional disability of occasional shortness of breath, coughing, wheezing. 38 C.F.R. § 3.361(c)(2). Resolving doubt in the Veteran's favor, the evidence supports entitlement to compensation under the provisions of 38 U.S.C. § 1151 in the present case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The section 1151 claim is granted. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. Rubin, 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.