KIDNEY NEOPLASM OF MALIGNANT

M. C. WILSON · 2026 · Case ID: A26040615

GRANTED

Summary

The Veteran, an Air Force Veteran who served from September 1966 to July 1969, appeals the denial of compensation under 38 U.S.C. § 1151 for residuals of prostate cancer. The Veteran claimed that VA failed to exercise reasonable care by not notifying him of elevated PSA test results from April 17, 2008, and that this failure proximately caused the progression of his prostate cancer, leading to additional disabilities like erectile dysfunction and voiding dysfunction. The Board reviewed new evidence, including a December 2024 VA medical opinion, which confirmed VA's failure to notify the Veteran of his elevated PSA results. While the examiner suggested the one-month delay in repeat testing might not have significantly altered the cancer's trajectory due to its slow-growing nature, the Board gave weight to the April 2019 VA opinion stating the Veteran should have been notified and the December 2024 opinion acknowledging a continuance or natural progress of the cancer during the delay. Resolving reasonable doubt in the Veteran's favor, the Board found that VA failed to exercise reasonable care and that this failure proximately caused the continuance or natural progress of the prostate adenocarcinoma, resulting in additional residuals. Consequently, the appeal for compensation under § 1151 for residuals of prostate cancer is granted.

Rationale

VA failed to notify Veteran of elevated PSA results; Failure proximately caused continuance/progress of prostate cancer; Resolving reasonable doubt in Veteran's favor

Service Branch

AIR FORCE

Special Benefit

§1151

Docket No.

250916-589309

Full Decision Text

Citation Nr: A26040615
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 250916-589309
DATE: April 30, 2026

ORDER

New and relevant evidence has been received to warrant readjudication of the claim for compensation under 38 U.S.C. § 1151 for residuals of prostate cancer.

Entitlement to compensation under 38 U.S.C. § 1151 for residuals of prostate cancer is granted.

FINDINGS OF FACT

1. New evidence was received in connection with the Veteran's Supplemental Claim for entitlement to compensation under 38 U.S.C. § 1151 for residuals of prostate cancer that provides additional information tending to prove or disprove a matter at issue in the claim.

2. The Department of Veterans Affairs failed to exercise the degree of care that would be expected of a reasonable health care provider when it failed to notify the Veteran of his elevated prostate-specific antigen (PSA) test results. The failure to timely diagnose and properly treat the disease proximately caused the continuance or natural progress of the Veteran's prostate adenocarcinoma resulting in his current additional disability, including erectile dysfunction and a voiding dysfunction.

CONCLUSIONS OF LAW

1. New and relevant evidence has been received to warrant readjudication of the issue of entitlement to compensation under 38 U.S.C. § 1151 for residuals of prostate cancer. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 3.2501.

2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for residuals of prostate cancer have been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Air Force from September 1966 to July 1969.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2025 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

In the September 16, 2025, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held before the undersigned Veterans Law Judge on March 26, 2026, and a transcript of the hearing is associated with the record.

Therefore, the Board may only consider the evidence of record at the time of the January 2025 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

The Board notes that, during the March 26, 2026, hearing, the Veteran expressly waived the 90-day period following the hearing in which to submit additional evidence.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

New and Relevant Evidence

In the January 2025 decision on appeal, the Veteran's claim for compensation under 38 U.S.C. § 1151 for residuals of prostate cancer was denied on the grounds that new and relevant evidence was not received to readjudicate the claim.

In order to readjudicate a claim which has been previously considered, a claimant must present new and relevant evidence. 38 C.F.R. § 3.156(d). New evidence is evidence that was not previously part of the actual record before agency adjudicators. 38 C.F.R. § 3.2501(a)(1). Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed.

In this case, the Veteran
.S.C. § 1151 for residuals of prostate cancer was denied on the grounds that new and relevant evidence was not received to readjudicate the claim.

In this case, the Veteran was most recently denied entitlement to compensation under 38 U.S.C. § 1151 for residuals of prostate cancer in a September 2023 decision. The AOJ found that the medical evidence of record at that time did not show that the proximate cause of the Veteran's residuals of prostate cancer was 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 that it was an event not reasonably foreseeable.

Following the September 2023 decision, the Veteran submitted a Supplemental Claim received by VA in August 2024. In December 2024, the AOJ obtained a new medical opinion regarding the Veteran's claim for entitlement to compensation under 38 U.S.C. § 1151 for residuals of prostate cancer.

The Board finds that the December 2024 VA examination and medical opinion constitute new evidence that provides additional information that tends to prove or disprove the Veteran's claim. Accordingly, new and relevant evidence has been received to warrant readjudication of the Veteran's claim for entitlement to compensation under 38 U.S.C. § 1151 for residuals of prostate cancer. The matter of entitlement to compensation under 38 U.S.C. § 1151 for residuals of prostate cancer is addressed below.

Compensation under 38 U.S.C. § 1151

In this case, the Veteran asserts that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, and that VA's failure to timely diagnose and properly treat his prostate cancer proximately caused the continuance or natural progress of the disease. See August 2024 VA Form 20-0995 with associated correspondence; see also March 2026 Board hearing transcript.

Compensation under 38 U.S.C. § 1151 shall be awarded for a qualifying additional disability in the same manner as if such additional disability were service-connected. A disability is a qualifying additional disability if it was not the result of the veteran's willful misconduct and it was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, and the proximate cause of the disability was (1) careless, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA; or (2) an event not reasonably foreseeable.

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. 38 C.F.R. § 3.361(b).

Claims based on additional disability due to hospital care, medical or surgical treatment, or examination must meet the following causation requirement: (1) the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability; or (2) VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress of a disease or injury. 38 C.F.R. § 3.361(c).

The proximate cause of disability or death is the action or event that directly cause the disability or death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). 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 or death, it must be shown that the hospital care, medical or surgical treatment, or examination 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, medical or surgical treatment, or examination without the veteran's or, in appropriate cases,
death, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). 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 or death, it must be shown that the hospital care, medical or surgical treatment, or examination 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, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1).

Turning to the relevant evidence during the period under review, the Veteran received VA treatment on April 17, 2008. The VA provider indicated that prostate cancer counseling was conducted with the Veteran during the visit, and that he desired to have PSA testing done. VA treatment records confirm that the Veteran underwent PSA testing on April 17, 2008. The report of the test results was released to VA on April 18, 2008, and the information was entered into his VA medical records. The April 17, 2008, test results show that the Veteran had a high PSA level of 4.54 ng/mL. There is no indication in VA treatment records that the results of the April 17, 2008, testing showing high PSA levels were communicated in any way to the Veteran. The Veteran has consistently reported that he incidentally discovered the April 17, 2008, VA PSA test results on his own, long after the results were obtained, and after he was diagnosed with prostate cancer by private medical providers.

Private treatment records associated with the claims file indicate that the Veteran underwent medical testing in August 2008 unrelated to the April 17, 2008, VA PSA testing. Rather, the Veteran underwent various medical testing in August 2008 through his private medical provider for medical insurance purposes, which revealed an increased PSA level of 5.31 ng/mL. Based on the August 2008 high PSA results, the Veteran's private treatment provider referred him to a urologist for evaluation and treatment. In an October 14, 2008, private urology examination, the provider noted that the Veteran denied any lower urinary tract symptoms or problems with erections. Based on the Veteran's August 2008 elevated PSA results, the provider ordered a prostate biopsy performed on October 24, 2008. The prostate biopsy revealed prostatic adenocarcinoma resulting in radical prostatectomy and bilateral pelvic lymph node dissection.

In October 2018 correspondence, the Veteran indicated that VA failed to exercise the degree of care that would be expected of a reasonable health care provider when it failed to notify him of the April 17, 2008, elevated PSA results. He further indicated that VA's failure to timely diagnose and properly treat his disease proximately caused the continuance or natural progress of the prostate cancer, which resulted in his current disability, including erectile dysfunction and a voiding dysfunction due to radical prostatectomy and bilateral pelvic lymph node dissection.

The Veteran was afforded a VA examination in April 2019. The examiner reported that residuals of the Veteran's prostate cancer included erectile dysfunction, a voiding dysfunction, and abdominal scars. The examiner stated that the Veteran "should have been notified about elevated [PSA]" results from the April 17, 2008, testing.

In December 2024, the AOJ obtained a new medical opinion in connection with the Veteran's August 2024 Supplemental Claim for entitlement to compensation under 38 U.S.C. § 1151 for residuals of prostate cancer. The examiner noted that the evidence shows that the Veteran was not notified of the elevated PSA test results from April 17, 2008. The examiner stated that medical literature would have recommended repeat PSA testing in six to eight weeks following the elevated PSA levels reported in the April 17, 2008, testing. The examiner reported that there was only a delay of approximately one month in repeat testing following the April 17, 2008, PSA results because the Veteran initiated treatment with a private medical provider in August 2008 (for an unrelated annual physical).

The December 2024 examiner indicated that, notwithstanding VA's failure to notify the Veteran of his elevated PSA test results, the lapse in time of about one month for repeat PSA testing was unlikely to have changed the trajectory of his prostate cancer pathology or treatment options due to the slow growing nature of prostate cancer. While the December 2024 examiner stated that prostate cancer is generally a slow growing cancer, the other medical evidence specific to this Veteran's diagnosis indicates that his prostate adenocarcinoma was an aggressive type of cancer. See also November 2022 VA examination. In this case, there appears to be no dispute that VA failed to notify the Veteran of his April 17, 2008, PSA test results. To the extent that the December 2024 VA examiner indicated that prostate cancer is slow growing, the December 2024 medical opinion nevertheless indicates that there would have been a continuance or natural progress of his prostate cancer during the lapse in time between when repeat testing would have been recommended if VA had not failed to notify the Veteran of his April 17, 2008, PSA test results, and when he received an affirmative diagnosis of prostate cancer.

In this particular case, the Board assigns weight to the April 2019 VA medical opinion to the extent that the examiner stated that the Veteran should have been notified about the elevated PSA results from the April 17, 2008, testing. Such evidence supports the Veteran's assertion that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. In addition, the Board assigns weight to that part of the December 2024 medical opinion that indicates that there would have been a continuance or natural progress of the Veteran's prostate adenocarcinoma during the lapse in time between when VA failed to notify him of the April 17, 2008, elevated PSA results, and when he should have undergone further testing/evaluation for prostate cancer.

In sum, the Board resolves reasonable doubt in favor of the Veteran in finding that VA failed to exercise the degree of care that would be expected of a reasonable health care provider when it failed to notify him of his April 17, 2008, elevated PSA results. Additionally, the Board resolves reasonable doubt in favor of the Veteran in finding that VA's failure to timely diagnose and properly treat the disease proximately caused the continuance or natural progress of his prostate adenocarcinoma, which resulted in his current additional residuals of prostate cancer, including erectile dysfunction and a voiding dysfunction.

Accordingly, the appeal for entitlement to compensation under 38 U.S.C. § 1151 for residuals of prostate cancer is granted.

M. C. WILSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board B. Mask, 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.

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