Citation Nr: 0831808 Decision Date: 09/17/08 Archive Date: 09/30/08 DOCKET NO. 07-03 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for paralysis of the right upper and lower extremities due to a left carotid arterectomy performed by the Department of Veterans Affairs (VA) in May 2004. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD Rochelle E. Richardson, Associate Counsel INTRODUCTION The veteran had active military service from June 1965 to August 1967. This appeal to the Board of Veterans' Appeals (Board) is from a September 2006 rating decision by the VA Regional Office (RO) in Jackson, Mississippi. FINDINGS OF FACT 1. The veteran has additional disability as a result of VA surgery performed in May 2004; specifically, he has paralysis of his right upper and lower extremities as a residual of a cerebrovascular accident (CVA or "stroke) following a left carotid arterectomy performed by a VA physician in a VA hospital in May 2004. 2. However, this additional disability was not proximately caused by VA's carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in furnishing the surgery. 3. Moreover, a stroke is a reasonably foreseeable risk associated with a left carotid arterectomy. 4. And this risk of a stroke was disclosed to the veteran and he, nevertheless, consented to the surgical procedure at issue. CONCLUSION OF LAW The criteria are not met for compensation under the provisions of 38 U.S.C.A. § 1151 for paralysis of the right upper and lower extremities due to a left carotid arterectomy performed by VA in May 2004. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2005); 38 C.F.R. 3.361 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist Review of the claims file reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100, et seq. See also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). That is, by way of a letter dated in October 2005, the RO advised the veteran of the evidence needed to substantiate his claim and explained what evidence VA was obligated to obtain or to assist him in obtaining and what information or evidence he was responsible for providing. 38 U.S.C.A. § 5103(a). See Quartuccio v. Principi, 16 Vet. App. 183 (2002). It equally deserves mentioning that a more recent March 2006 letter also informed him of the downstream disability rating and effective date elements of his claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Consider, as well, that the RO issued both VCAA notice letters prior to initially adjudicating his claim in September 2006, the preferred sequence. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (Pelegrini II). Here, even if there arguably is any deficiency in the notice to the veteran or the timing of the notice it is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding the Board had erred by relying on various post-decisional documents for concluding adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, the Court nonetheless determined the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, and therefore found the error harmless). If there was any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on VA's part has been rebutted: (1) based on the communications sent to the veteran over the course of this appeal, and his responses, he clearly has actual knowledge of the evidence he is required to submit; and (2) based on his contentions and the communications provided to him by VA over the course of this appeal, he is reasonably expected to understand from the notices provided what was needed. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). And as for the duty to assist, the RO obtained the veteran's private medical records and VA medical records - including his VA surgery report for the May 2004 procedure at issue and a VA medical opinion as to the etiology of his paralysis, in particular insofar as whether there is any connection between VA's performance of the procedure and his paralysis, the determinative issue. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). As there is no other indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. Entitlement to Compensation under 38 U.S.C.A. § 1151 for Paralysis When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service connected. See 38 U.S.C.A. § 1151 (West 2002 & Supp. 2006); see also 38 C.F.R. § 3.358(a) (2006). Compensation will not be payable for the continuance or natural progress of disease or injuries for which the hospitalization or treatment was authorized. See 38 C.F.R. § 3.358(b)(2). Compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the veteran. "Necessary consequences" are those that are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. See 38 C.F.R. § 3.358(c)(3). In determining whether additional disability exists, the veteran's physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other relevant incident in which the claimed disease or injury was sustained upon which the claim is based, is compared to the veteran's condition after such treatment, examination or program has stopped. See 38 C.F.R. § 3.361(b). For the purposes of 38 U.S.C.A. § 1151, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility. A Department employee is an individual (i) who is appointed by the Department in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. § 2105; (ii) who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of law; and (iii) whose day- to-day activities are subject to supervision by the Secretary of VA. 38 C.F.R. § 3.361(e). A Department facility is a facility over which the Secretary of VA has direct jurisdiction. Id. Provided that additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the veteran's additional disability. See 38 C.F.R. § 3.361(c)(1). Furthermore, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. In addition, the proximate cause of the disability or death must be either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C.A. § 1151; see also VAOPGCPREC 40-97 (Dec. 31, 1997). To establish that carelessness, negligence, lack of proper skill, error in judgment or other instance of fault proximately caused the additional disability, it must be shown either that VA failed to exercise the degree of care expected by a reasonable treatment provider, or furnished the medical treatment at issue without the veteran's informed consent. See 38 C.F.R. § 3.361(d)(1). Proximate cause may also be established where the veteran's additional disability was an event not reasonably foreseeable - to be determined based on what a reasonable health care provider would have foreseen. 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. In determining whether an event was reasonably foreseeable, VA will consider the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent (in accordance with 38 C.F.R. § 17.32). See 38 C.F.R. § 3.361(d)(2). Minor deviations from the 38 C.F.R. § 17.32 requirements that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express or implied as specified under 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). In adjudicating a claim for benefits, the Board must determine whether the evidence supports the claim or is in relative equipoise (i.e., about evenly balanced for and against the claim), with the veteran prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Here, records show the veteran underwent a left carotid endarectomy on May 4, 2004, at a VA hospital under the direction of a VA surgeon. The veteran alleges that he suffered a cerebrovascular accident (CVA or "stroke") as a result of this surgical procedure; that he now consequently suffers from paralysis of his right upper and lower extremities as a result of VA's carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in furnishing that surgery, or that it is due to some occurrence that was not reasonably foreseeable; and that he is, therefore, entitled to § 1151 compensation. First, the Board will consider whether the veteran has additional disability for the purposes of VA compensation by comparing his physical condition immediately prior to his surgery to his condition after his surgery. See 38 C.F.R. § 3.361(b). The record shows the veteran has a history of hypertension and CVA that pre-dates this surgery. Two prior instances of CVA are documented in the record. Prior to the procedure at issue, his more recent documented admission for CVA was in November 1999. At that time, he had a transthoracic echocardiogram that showed an ejection fraction of 30-35 percent and an inferior wall hypokinesia. A subsequent transesophageal echocardiogram revealed a clot in his atrium and a polyp behind an atrial wall. He was anticoagulated with Heparin and oral Coumadin. In December 2002, the veteran sought medical treatment at a VA medical facility, complaining of left-sided joint pain that he had been having since his 1999 CAV. He also complained of legs aching at night and abdominal fullness, intermittently throughout the day. He stated, as well, that the last time he was checked his strength on his right side was only at 50 percent. Prior to surgery, the veteran was diagnosed with bilateral carotid artery disease and he was symptomatic on the left side with over 90% stenosis of the artery. The record includes a form, signed by him, consenting to the surgical procedure at issue. Specifically, the consent form shows that the risks and benefits of this procedure were discussed with him, including noting possible complications such as infection, hemorrhage, injury to the nerves in the neck, swallowing difficulty, voice changes, stroke, heart attack, tongue weakness, facial weakness, or even death. And, as mentioned, he signed the consent form for this surgical procedure fully knowledgeable of these inherent risks. The record notes that following this surgery on May 4, 2004, the veteran was neurologically intact, alert, and well- oriented for approximately four hours. Then, he developed a sudden onset of right upper extremity weakness and dysphasia. A radiological (CT) scan did not show any large area stroke. However, angiography showed high-grade narrowing of the artery just distal to the arteriotomy site, at the base of the skull. Hence, the VA physician recommended re-operation and opening of the arteriotomy exploration. The record notes another procedure as reopening of the carotid endarectomy site, removal of the clot, and removal of plaque. The record contains the veteran's discharge summary, dated May 19, 2004. The discharge summary notes that neurovascularly, he remained alert, awake, aphasic, with mild right facial asymmetry. The motor strength of his right upper extremity was assessed at 0/5, as was that of his right lower extremity. The CT scan of his head on May 4, 2004 indicated no recent infarct. The CT scan of his head on May 5, 2004 showed intracerebral bleeding in the left parietal lobe. The CT scan of his head was periodically repeated to evaluate further resolution of hematoma in the stroke area. The CT scan of his brain without IV contrast on May 14, 2004 showed large hemorrhagic infarct in the left frontal and parietal regions, with some midline shift to the region with low density area in the left parietal occipital region and left basal ganglia consistent with lacunar infarct. This was noted as without any significant change from May 11, 2004. He was discharged to a rehabilitation hospital. These records confirm the veteran has additional disability - namely, right upper and lower extremity paralysis, following the May 4, 2004 surgery at issue. The Board will now consider whether the surgery resulted in the veteran's additional disability, both actually and proximately. See 38 C.F.R. § 3.361. As the record contains a consent form that he signed and there is no allegation that he did not give his informed consent to this procedure, the Board will now consider whether the record establishes that carelessness, negligence, lack of proper skill, error in judgment or other instance of VA fault proximately caused his additional disability. See 38 C.F.R. § 3.361(d)(1). In August 2006, VA provided the veteran a neurological examination to assess whether his paralysis is due to the May 2004 surgery. The VA examiner reviewed the veteran's claims file and medical history and concluded that "it is as likely as not that this 3rd CVA is associated with the surgery procedure. CVA is a risk or a complication of a carotid endarectomy procedure." However, the VA examiner further indicated that the consent form expressly mentions this risk and that "there is no evidence that this is the direct result of a VA fault such as carelessness, negligence or lack of proper skill or error in judgment or a complication of a VA care or treatment." Other records show the veteran has a genetic defect of Factor V Leiden mutation disorder. He argues that, as he has a blood-clotting disorder, specifically Factor V Leiden mutation disorder, VA was careless, negligent, in error in judgment, or otherwise at fault in performing this procedure on him, as VA should have known of his condition prior to this procedure. In making this argument, the veteran presents the findings of an "Independent Medical Evaluation" by a private physician, C.N.B, M.D. In the report of this evaluation, Dr. C.N.B. asserts that the expected outcome of a carotid endarectomy procedure is not paralysis and that the veteran's case is unforeseeable. He cites the professional literature and notes that "99.4% of patients do not experience the unfortunate outcomes that this patient had" and concludes that a 0.6 percent chance of an event's occurrence is "unforeseen." Dr. C.N.B., however, fails to consider the fact that the appropriate standard is not whether a particular event is "unforeseen," rather whether it is one that a reasonable health care provider would have considered to be an ordinary risk of the treatment provided, as might be disclosed in a consent form. And, here, stroke was not only readily disclosed on the consent form as a potential risk factor, but Dr. C.N.B.'s analysis even acknowledges that this risk, albeit less than 1 percent, is, nevertheless, a known risk factor. Besides stating that the veteran's subsequent paralysis is not the expected result of a carotid endarectomy procedure, Dr. C.N.B. opines that in his opinion, VA's failure to diagnose and treat the veteran's genetic defect of Factor V Leiden mutation disorder when he earlier presented for treatment in 1999 was negligent and deviant from standard medical practices, and further that had VA diagnosed his genetic disorder in 1999, the blood clotting and second surgical procedure associated with the May 2004 surgery would have been avoided. That VA may not have conducted a particular test some five years earlier, in 1999, which would have revealed the veteran has a genetic disorder predisposing him to blood clots is not dispositive. Instead, what is more relevant is whether VA failed to exercise the degree of medical care expected by a reasonable treatment provider during the specific time in question, when the veteran had the surgery in May 2004. So the Board finds that, although the veteran's CVA was caused by the surgery, his consequent paralysis is not the direct result of carelessness, negligence, lack of proper skill, error in judgment or other instance of VA fault; and, furthermore, that CVA is a reasonably foreseeable event in relation to a carotid endarectomy procedure. The veteran also offers his personal opinion that VA should have diagnosed his Factor V Leiden mutation disorder prior to this surgical procedure. As a layman, he is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). The Board notes the veteran's contention that his particular susceptibility to blood clotting may have made him more likely to experience blood clotting, as a general proposition, and, therefore, more likely to experience a stroke. However, again, the consent form that he signed clearly lists "stroke" as an inherent risk of the procedure and makes no mention of any degree of probability, neither greater nor lesser, which might be associated with this risk. And, regardless, minor deviations from the 38 C.F.R. § 17.32 requirements regarding the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent are immaterial under the circumstances of a case and will not defeat a finding of informed consent. Therefore, the Board finds that the veteran gave his informed consent to this surgical procedure and, specifically, that he was informed of the inherent risk of stroke associated with it, however minimal. And while indeed unfortunate that this potentiality materialized, the Board does not have the legal authority to grant § 1151 compensation under this circumstance. That is to say, although the Board is sympathetic to the veteran's claim, the Board does not have authority to grant the benefit on an equitable basis, but instead is constrained to follow the specific provisions of law. See 38 U.S.C.A. §§ 503, 7104(c) (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994) (determinations as to equitable relief are not within the Board's jurisdiction). It has been held that the authority to award equitable relief under § 503(a) is committed to the discretion of the Secretary of VA, and that the Board is without jurisdiction to consider that which is solely committed to the Secretary's exercise of that discretion. See McCay v. Brown, 9 Vet. App. 183, 189 (1996). For these reasons and bases, the preponderance of the evidence is against the veteran's claim - in turn meaning there is no reasonable doubt to resolve in his favor and his claim must be denied. See 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The claim for compensation under 38 U.S.C.A. § 1151 for paralysis of the right upper and lower extremities, due to a left carotid arterectomy performed by VA in May 2004, is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs