Citation Nr: 0004740 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 96-36 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for the removal of a portion of the right sixth rib. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patricia A. Boston, Counsel INTRODUCTION The veteran served on active duty from February 1972 to November 1975. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a rating decision of September 1995 by the Department of Veterans Affairs (VA) Regional Office (RO) located in New Orleans, Louisiana. The only disability involved in the current claim is the resection of a portion of the right sixth rib as set forth on the title page of this decision. It is unclear from the record whether the veteran claiming other disabilities resulting form the May 1990 surgery. It is requested that the RO contact the appellant in order to clarify this matter. In March 1998, the Board remanded this case to the RO for additional development of the evidence. FINDING OF FACT The resection of a portion of the right sixth rib is considered to be part of the thoracotomy, which was performed during hospitalization at the VAMC in Shreveport form May 8 to May 18, 1990. CONCLUSION OF LAW The criteria for compensation benefits pursuant to 38 U.S.C.A. § 1151 for removal of a portion of the right sixth rib have not been met. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. §§ 3.358 (a), 3.800 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim is well grounded pursuant to 38 U.S.C.A. § 5107(a) (West 1991) in that the claim is plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). Once it has been determined that a claim is well grounded VA has a statutory duty to assist the veteran in the development of evidence pertinent to his claim. The Board is satisfied that all appropriate development has been completed and the statutory duty has been met. The applicable statute provides that, where a veteran sustains a disease or injury, or an aggravation of an existing disease or injury, as the result of VA training, hospitalization, medical, or surgical treatment or a course of vocational rehabilitation, or as a result of having submitted to an examination, not the result of such veteran's own willful misconduct, and such disease, injury or aggravation results in additional disability or the death of such veteran, disability or death compensation shall be awarded in the same manner as if such disability, aggravation, or death were service-connected. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (a) (1999). In determining that additional disability exists, the following considerations will govern: (1) The veteran's physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury, each body part involved being considered separately. (i) As applied to examinations, the physical condition prior to the disease or injury will be the condition at time of beginning the physical examination as a result of which the disease or injury was sustained. (ii) As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition, which the specific medical or surgical treatment was designed to relieve. (2) Compensation will not be payable under 38 U.S.C.A. 1151 for the continuance or natural progress of disease or injuries for which the training, or hospitalization, etc., was authorized. 38 C.F.R. § 3.358(b) (1999). In determining whether such additional disability resulted from a disease or an injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination, the following considerations will govern: (1) It will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith. (2) The mere fact that aggravation occurred will not suffice to make the additional disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as the result of training, hospitalization, medical or surgical treatment, or examination. (3) Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. Consequences otherwise certain or intended to result from a treatment will not be considered uncertain or unintended solely because it had not been determined at the time consent was given whether that treatment would in fact be administered. (4) When the proximate cause of the injury suffered was the veteran's willful misconduct or failure to follow instructions, it will bar him (or her) from receipt of compensation hereunder except in the case of incompetent veterans. 38 C.F.R. § 3.358(c) (1999). Where disease, injury, death or the aggravation of an existing disease or injury occurs as the result of having submitted to a VA examination, medical or surgical treatment, hospitalization or a course of vocational rehabilitation under any law administered by VA and not a result of the veteran's own willful misconduct, disability or death compensation or dependency and indemnity compensation will be awarded for such disease, injury, aggravation or death as if such condition were service connected. 38 C.F.R. § 3.800. 38 U.S.C.A.§ 1151 was amended with regard as to what constitutes a "qualifying additional disability." The revisions became effective October 1,1997. The amendment serves to further restrict the application of 38 U.S.C.A. § 1151 as negligence is now a factor to be considered and, thus, would be less favorable to veteran than the statute prior to the revisions. The United States Court of Appeals for Veterans Claims (Court) has held that where the law changes after a claim has been filed or reopened, but before the administrative or judicial process has been concluded, the version most favorable will be applied, unless Congress provided otherwise or permitted the VA Secretary to provide otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991). Accordingly, the more favorable version of 38 U.S.C.A. § 1151, in effect before October 1997, will be applied to the veteran's claim. In this case, the veteran reports that he was hospitalized at the VA Medical Center in Shreveport, Louisiana, from May 8, 1990 to May 18, 1990, during which time he underwent a flexible bronchoscopy, and wedge resections to a segment of the right lower lobe of his lungs. During the course of the surgery, a portion of the sixth rib was removed. The veteran contends, in part, that this represents additional disability and that he is therefore entitled to compensation under 38 U.S.C.A. § 1151 (West 1991). The evidence of record reflects that the veteran was found to have a right upper lobe coin lesion on a chest X-ray conducted in April 1984 after he was involved in a motor vehicle accident. During a period of hospitalization in May 1985, the veteran underwent a computerized tomography scan (CT scan) of the chest, which revealed a lesion to be pleural based and to have prominent central calcifications. The veteran was admitted to the VA Medical Center in December 1987 for a biopsy of his lung lesion. He underwent a transthoracic needle aspiration and biopsy without difficulty. A VA outpatient treatment record dated later that same month noted that the biopsy results did not reveal any evidence of malignancy, but since the lesion had grown in size, cancer could not be ruled out. It was noted that the veteran was to be checked at six month intervals. The VA outpatient treatment records show that the veteran complained of right sided chest pain in January 1988 and May 1988. A VA outpatient treatment record dated in June 1988 noted that the lesion was continuing to grow in size and was "practically touching a rib." In a VA outpatient treatment record dated in November 1988, the veteran was informed that the examiner felt the lesion was benign, but the only way to rule out cancer was to have it removed, which was what the doctor recommended to the veteran. A VA outpatient treatment record dated in December 1988 noted that another computerized tomography scan was conducted that same month, which revealed that the lesion was benign, but that it had been increasing in size and a malignancy could not be ruled out. It was noted that the examiner recommended surgical resection and discussed the need for surgical intervention to provide care should this be malignant. Another VA outpatient treatment record dated in April 1990 indicated that the examiner had reviewed the veteran's chest X-rays; that the examiner expressed his opinion that the lesion may be a slow moving sarcoma of the chest wall; that the examiner again recommended that the veteran have the lesion removed surgically; that surgical resection was discussed with the veteran; and that the veteran agreed to have surgery. A VA Standard Form 522, Request for Administration of Anesthesia and for Performance of Operations and Other Procedures, was signed by the veteran on May 9, 1990. It was noted that the veteran gave his consent for flexible bronchoscopy, right thoracotomy, possible chest wall resection, epidural catheterization, right lung resection, and any additional operations or procedures as were found to be necessary or desirable in the judgment of the professional staff of the VA medical facility during the course of the above named operation or procedure. The veteran was admitted to the VA Medical Center in Shreveport, Louisiana, on May 8, 1990, for the right upper lobe mass. While hospitalized, he underwent a flexible bronchoscopy, right posterolateral thoracotomy, and wedge resection for lesion of the superior segment of the right lower lobe. A review of the operative report shows that a flexible bronchoscopy showed the trachea appeared to be within normal limits below the endotracheal tube. The left mainstem bronchus, the left upper lobe lingula and the left lower lobe were without lesions. The right upper middle bronchus intermedius and lower lobe were without lesions. A posterolateral thoracotomy was made and the fifth intercostal space was localized and the bed of the sixth rib was entered with the Bovie cautery. A 2.5 centimeter segment of the posterior sixth rib was removed and sent to Pathology. There appeared to be a 3.5 centimeter hard lesion in the right lower lobe. The lesion appeared to be benign in nature. An incisional biopsy was performed and sent to the frozen section. Frozen section returned benign granuloma and at that time, it was determined to do a wedge excision of this. There were no postoperative complications. The pathology report showed a subpleural old necrotizing granuloma with partial calcification compatible with tuberculosis or histoplasmosis and no specific pathology of the rib section. Tuberculosis and fungal stains were negative. There were no complications and the veteran was discharged home on May 18, 1990. The veteran was seen in March 1992 for complaints of a stiff neck, earache and pain down his right side since his thoracotomy in 1990. A VA outpatient treatment record dated in September 1992 shows complaints of pain on the right side, back, and underneath shoulder blade since May 1990, and a past history of right chest pain. The diagnosis was lumbosacral strain and chronic thoracic pain after thoracotomy. The veteran testified before a hearing officer at the RO in October 1996 that, at the time he signed the consent for surgery, it was understood that there would be no rib taken out unless the tumor was cancer. He reported complaints of pain on the right side. VA examinations were conducted in January 1997. The pertinent diagnoses were minimal intercostal muscle changes associated with a right thoracotomy, hypoesthesias in an area superior and inferior to the right thoracotomy scar, recurrent lumbar strain, episodes, onset after thoracotomy in 1990, cervical spondylosis and disc disease, and chronic pain right chest and upper extremities with intermittent paresthesia. An examiner commented that since the chronic pain in the right chest and right upper extremity did not antedate the thoracotomy they may be considered to be related to the right thoracotomy. Pursuant to the Board's March 1998 remand, the veteran's claims folder was reviewed by a VA examiner in September 1998. It was the VA examiner's opinion, after reviewing the veteran's claims folder and medical history, that it was not at least as likely as not that the veteran incurred additional disability, removal of the portion of the sixth rib, which resulted from treatment rendered during hospitalization at the VA Medical Center Shreveport, Louisiana, in May 1990, which was not coincidental to said treatment, the result of natural progression of any involved disease or disability, or the necessary consequences of medical or surgical treatment. The VA examiner concluded that repeated evaluations and examinations as well as follow-up clinical notes in the veteran's medical record did not indicate any significant medical impairment or functional impairment related to resection of a portion of the right posterior sixth rib. The examiner stated that resection of a portion of a rib in order to get adequate exposure during the thoracotomy in 1990is considered to be a common part of the procedure. The VA examiner also concluded that the veteran's lower back, neck and upper extremity symptomatology do not seem to be related to resection of a portion of the right sixth rib. The VA examiner further concluded that the veteran's right thoracic symptomatology seemed to be related to the thoracotomy itself as opposed to being related to the resection of a portion of the right sixth rib. Moreover, the examiner concluded that another examination was not warranted. Where the determinative issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Lay assertions of medical causation, or substantiating a current diagnosis, cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. While the veteran is competent to describe symptoms, a diagnosis and an analysis of the etiology regarding such complaints requires competent medical evidence and cannot be evidenced by the veteran's lay testimony. As such, the testimony furnished during the personal hearing has not served to render this claim well-grounded. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). In this regard during the veteran's hospitalization at the VAMC in Shreveport, Louisiana, in May 1990, he underwent a flexible bronchoscopy, right posterolateral thoracotomy, and wedge resection for lesion of the superior segment of the right lower lobe. Postoperatively, there were no complications. VA examinations in January 1997 showed that he had been experiencing hypoesthesias in an area of the right thoracotomy scar, recurrent lumbar strain, neck pain and chronic pain right chest and upper extremities with intermittent paresthesia. However, in September 1998 the veteran's records were reviewed by an appropriate specialist. At that time the specialist concluded in effect that removal of a portion of the sixth rib was necessary consequences of the thoracotomy in May 1990. Accordingly, it is the Board's judgment that the preponderance of the evidence is against the veteran's claim for compensation benefits pursuant to 38 U.S.C.A. § 1151 for the removal of a portion of the right sixth rib during the veteran's hospitalization at the Shreveport VAMC in May 1990. ORDER Entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for the removal of a portion of the right sixth rib is denied. ROBERT P. REGAN Member, Board of Veterans' Appeals