On appeal from the Department of Veterans Affairs (VA) Regional Office in Manchester, New Hampshire
Entitlement to compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death.
Appellant represented by: Kathleen M. McCoy, Agent
WITNESSES AT HEARING ON APPEAL
Dr. C. Bash and K. Marrin
ATTORNEY FOR THE BOARD
The Veteran served on active duty from July 1959 to July 1961. He died in September 2010. The appellant is his surviving spouse.
This case comes before the Board of Veterans Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Due to the location of the appellant's residence, jurisdiction of her appeal remains with the RO in Manchester, New Hampshire. In October 2013, a videoconference hearing was held before the undersigned Veterans Law Judge; a transcript of the hearing has been associated with the claims file.
This case was previously before the Board in March 2014, at which time the Board elected to pursue evideniary development in conjunction with the appellant's claim by seeking an independent medical expert (IME) opinion. See 38 U.S.C.A. § 7109 (West 2002); 38 C.F.R. § 20.901 (2013). The opinion was provided in April 2014, it has been added to the record, provided for review by the appellant, and as will be explained herein, it provides a basis for the allowance of the appellant's claim for service connection for the cause of the Veteran's death.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a) (2) (West 2002).
FINDING OF FACT
The preponderance of the competent medical and other evidence of record reflects that VA failed to sufficiently evaluate and timely diagnose the Veteran's metastatic sarcoma for purposes of instituting timely ameliorative treatment; and, the lack of timely VA medical attention/treatment contributed materially and/or substantially to hasten his death.
CONCLUSION OF LAW
The criteria for service connection for the cause of the Veteran's death under 38 U.S.C.A. § 1151 are met. 38 U.S.C.A.§ 1151 (West 2002); 38 C.F.R. §§ 3.102, 3.312, 3.361 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist a claimant in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). The VCAA applies in the instant case. However, the Board's grant of service connection for cause of the Veteran's death herein represents a complete grant of the benefit sought on appeal. No further discussion of VA's duty to notify and assist is necessary.
The essential facts in this case show that the Veteran was initially seen on October 20, 2009 with a chief complaint of possible allergy. During this visit he reported that he had sought treatment for a history of right knee pain from a chiropractor who recommended an over-the-counter herbal remedy. However the herbal remedy caused the Veteran's lip to swell requiring a trip to the emergency room and a prescription for prednisone. With regard to his allergic reaction the Veteran was instructed to finish and or continue his medications as needed. With regard to the knee pain, he declined a P.T. consult as he reported that he could "live with it now." See VA Ambulatory Care Note datEd October 20. 2009. These records show the Veteran was seen two days later for a follow-up urology visit. At that time his pain screen revealed a pain level of 0. See Nursing Outpatient Note dated October 22, 2009.
The Veteran was next seen on December 3, 2009 for complaints of right groin pain of two weeks duration. The pain radiated from the groin down to the right knee and the Veteran also reported a sensation of swelling in the posteriormedial upper thigh and of "sitting on a rolled-up towel" underneath his right gluteus. There was no abnormal mass palpated in the right groin. The clinical impression was sciatica and an X-ray of the right hip and lumbar spine series were ordered.
The Veteran was seen in early January 2010 for evaluation of his continued chronic right leg pain of one month duration. See Nursing Triage Note dated January 7, 2010. At that time, he reported that the medications given at the last outpatient visit did not help and that his right leg, groin, and lower back were "driving me crazy." His pain level at that time was a 4. A January 2010 CT scan report of the lumbar spine showed mild bulging disc. X-rays of the right hip and lumbar spine taken at that time showed mild degenerative changes. By mid-February 2010, the Veteran was referred to the pain clinic for further interventions.
The remaining records show continued evaluation and conservative treatment of the Veteran's right leg pain consisting of pain medications, heat application, a TENS unit, stretching exercises, and epidural injections with no significant improvement. The Veteran's pain level was noted as 6-8/10. By March 2010, the VA physician may have ordered, or at least was contemplating, a MRI of the hip to rule out other pathology. See VA Ambulatory Care Noted dated March 23, 2010. These records also show that the Veteran eventually went to an outside provider in early April 2010 who ordered a MRI, which revealed a tumor in his groin. See VA outpatient treatment records dated from February 2010 to April 2010.
Treatment records from tr.e Veteran's private medical oncologist, document the Veteran's history of right thigh discomfort of several, possibly 6, months duration. It was also noted that he had previously been followed by the VA Clinic, but was unhappy with the care he received. MRI findings from late March 2010 revealed a 12x12x8.5 malignant mass in the right upper thigh and subsequent biopsy results were consistent with a sarcoma. The Veteran also had metastatic disease involving his lungs. The diagnosis was metastatic high grade sarcomatoid neoplasm involving lung and bone. It was noted that the Veteran's disease was not curable and he received palliative care includin9 surgery and radiation therapy. See treatment notes from Omni Healthcare dated from April 2010 to August 2010. The Veteran died on Sept. [redacted], 2010.
There are several opinions on file addressing the events leading up to the Veteran's sarcoma diagnosis and the adequacy of the medical care provided to him by VA. In August 2011, a VA physician reviewed the Veteran's claims file and concluded that the diagnosis and treatment of the right thigh mass was not caused by or a result of any VA negligence or the cause of death. The physician noted a careful literature review indicated that these types of tumors were uncommon and made up only one (1) percent of all cancers. There was no evidence to support that there was a delay in treatment nor a misdiagnosis.
However in a May 2013 private medical opinion, a neuro-radiologist concluded that had the Veteran received appropriate imaging (MRI), in 2009, the tumor would have
(100 percent) likely been identified since the size of the tumor was likely large even as early as September 2009. He opined that there was a 100 percent likelihood that the Veteran died prematurely (earlier than he would have) and that essentially his death was caused by carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA.
Also of record is a June 2013 statement, from the Veteran's private medical oncologist, who agreed that had the appropriate studies been performed earlier, it is likely that the Veteran's tumor would have been identified given his symptoms at the time of his initial presentation at the VA clinic.
Because of the conflicting evidence of record, and the complexity of the issue, the Board obtained an IME opinion in March 2014 from an oncologist. The medical expert was asked, in pertinent part, whether: 1) there was a delay in the diagnosis of the Veteran's sarcoma; 2) any delay was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA medical personnel; 3) the delay in diagnosis caused or hastened the Veteran's death or that his death was an event that was not reasonably foreseeable; and 4) a healthcare provider exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the Veteran's sarcoma prior to April 2010. The IME was asked to specifically comment on whether the Veteran's clinical findings, or lack thereof, in January 2010 should have been followed by additional MRI testing.
In response to these questions, the IME stated that there had been a delay in the diagnosis of the Veteran's sarcoma as he presented with sufficient symptoms between October and December of 2009. He explained that the physician's evaluation during that timeframe was insufficient and a differential diagnosis for the Veteran's symptoms may not have been broad enough. He noted that while he was unable to conclude that there was any carelessness or lack of proper skill, the evidence did suggest that there may have been negligence or error in judgment in properly evaluating the Veteran.
Citing to a scientific research study, the IME noted that the 5-year survival probabilities of malignant fibrous histiocytomas can be 80 percent when localized, but only 11 percent when it has metastasized. He opined that had an MRI been ordered earlier the Veteran's probability in all likelihood (greater than 50 percent) for survival would have been significantly higher, and he may have even had an opportunity for complete tumor eradication. The IME then concluded that the Veteran's presenting symptoms of groin and knee pain with swelling of the posteriormoedial upper thigh and mass-like sensation when seated should have raised concern for a soft tissue mass and warranted a more thorough diagnosis tic work-up in this area. Moreover, the working diagnoses of sciatic, arthritis, and lumbar radiculopathy were distractions and likely contributed to the delay in diagnosis. X-rays of the hip and spine followed by a non-contrasted CT of the lumbar spine were insufficient. At the least a contrasted CT of the pelvis and hip should have been considered as early as October 2009.
The Board finds that the IME opinion is highly probative as it fully addressed all questions surrounding the etiology of the Veteran's death, and is the most probative evidence of record, since it involved a review and analysis of the entire record. Given the recognized expertise of the opinion provider, references to evidence which reflect familiarity with the entire record, and the explanati9n of the rationale, the Board finds the IME opinion persuasive.
There is no adequate reason to reject the competent medical opinions of record that are favorable to the appellant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (in evaluating the evidence and rendering a decision on the merits, the Board is required to assess the credibility and probative value of proffered evidence in the context of the record as a whole); Evans v. West, 12 Vet. App. 22, 26 (1998). Indeed, the single negative opinion of record (August 2011 VA opinion) is limited in terms of its ultimate probative value as it is somewhat cursory, in that the examiner did not explain what evidence in the Veteran's treatment records supported his/her conclusion and referenced little, if any, clinical data or other evidence as rationale for the opinion.
Thus, after carefully reviewing and weighing the competent medical evidence of record, the Board is satisfied that the lack of timely VA medical attention or treatment as likely as not caused or contributed materially in the continuance or progression of the fatal disease process that led to the Veteran's demise. 38
U.S.C.A.§ 1151; 38 C.F.R. §§ 3.102, 3.312, 3.361.
Entitlement to compensation under 38 U.S.C.A. § 1151 for the cause of the Veteran's death is granted.
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.ll00(b) (2013)