Citation Nr: 1108412 Decision Date: 03/02/11 Archive Date: 03/17/11 DOCKET NO. 07-31 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether the Veteran is entitled to compensation under 38 U.S.C.A. § 1151 for additional disability caused by surgical treatment by the Department of Veterans Affairs in April and May 2003. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Russell P. Veldenz, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1963 to April 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in October 2005 of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2009, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. An opinion from the Veterans Health Administration (VHA) was obtained in July 2009. The Board provided the Veteran and his representative a copy of the opinion and afforded the Veteran the opportunity to submit additional argument and evidence. The Veteran and the Veteran's representative indicated that there was no additional argument. The Veteran had also appealed a rating higher than the 70 percent for posttraumatic stress disorder. In December 2009, the Board remanded the case to obtain records from the Social Security Administration. While on remand, the RO granted a total disability rating for compensation based on individual unemployability. The Veteran then withdrew his appeal for a rating higher than 70 percent for posttraumatic stress disorder. The RO obtained the records from the Social Security Administration in January 2010. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The Veteran does not have additional disability that resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on part of VA in furnishing surgical treatment in April and May 2003, and the results of the surgery were reasonably foreseeable. CONCLUSION OF LAW The criteria for disability compensation under 38 U.S.C.A. § 1151 due to VA surgical treatment in April and May 2003 have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2010). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- and post- adjudication VCAA notice by letters, dated in July 2005 and in August 2006. The notice included the type of evidence necessary to substantiate a claim under 38 U.S.C.A. § 1151, namely, evidence of additional disability the result of VA hospitalization or medical care, due to carelessness, negligence, lack of proper skill, error in judgment, or similar incidence of fault on the part of the VA, caused an additional disability or that the additional disability was the result of an event that was not reasonably foreseeable and caused the Veteran's disability. The Veteran was notified that VA would obtain VA records and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for content of the VCAA notice, the documents substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (to the extent of pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim). To the extent that the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The timing error was cured by content-complying VCAA notice after which the claim was readjudicated as evidenced by the supplemental statement of the case, dated in January 2010. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained VA records, records of the Social Security Administration, and private medical records. The Veteran was afforded a VA examination in March 2006 and in January 2010. In the written presentation to the Board, the Veteran's representative argues that VA failed in its duty to assist by failing to determine if medical quality assurance records exist and if so, then obtaining the records. Under 38 U.S.C.A. § 5705, records created as part of the VA's medical quality-assurance program are confidential and access is limited. Under 38 U.S.C.A. § 5705(b) and the implementing regulations, in part, 38 C.F.R. §17.508(a), neither the adjudicative personnel of the Veterans Benefits Administration nor the personnel of the Board of Veterans' Appeals are listed among the persons authorized access to quality-assurance records. See also VA Adjudication Manual, M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. A, Para. 3, Subpara. i, entitled "Quality Assurance Investigative Reports" (which replaced previous M21-1, Part IV, Chap. 22, Subchap. 1, § 22.03), pertaining to the development of the evidence relating to claims under 38 U.S.C.A. § 1151, citing 38 U.S.C.A. § 5705, the manual instructs that quality-assurance reports are confidential and cannot be used as evidence in the adjudication of claims under 38 U.S.C.A. § 1151. The Board does not have the authority to invalidate or ignore a VA statute or VA regulations. See 38 U.S.C.A. 7104(c) (Board is bound in its decisions by the regulations of the department and instructions of the Secretary). Although VA is required under VCAA to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim, in the absence of any specific provisions of the law or regulations that authorize access to quality-assurance records for adjudicative use, the Board finds that it is not required to obtain such records pursuant to the duty to assist under the VCAA. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Facts The Veteran was born in June 1946 and he served on active duty from September 1963 to April 1972. The Veteran is seeking VA disability compensation under 38 U.S.C.A. § 1151 for additional disability due to VA surgical treatment in April 2003 and in May 2003, asserting that as a result of surgeries by VA he has chronic pain in the back and chest wall. VA records show in February 2003 the Veteran complained of exertional chest pain and easy fatigue. Cardiac catherization revealed problems in two of the major arteries of the heart. During the work-up, a 4.8 cm saccular aneurysm in the descending thoracic aorta was found. In March, 2003, before the cardiac bypass surgery, in a surgical cardiac note, the risks and benefits of the surgical options for treating coronary artery disease and an aneurysm were discussed with the Veteran, as well as the non-operative alternatives. The Veteran then requested the coronary bypass surgery and after a period of a recovery the repair of the aneurysm. The physician reported that the Veteran understood the magnitude of the operations and the potential major complications, including but not limited to death, stroke, bleeding, ventilator dependence, pneumonia, infection, organ failure, and pain. He also explained to the Veteran the bypass grafts would not slow the progression of the disease and that the grafts had a limited duration of patency. After all questions were answered, the Veteran requested to proceed, understanding that the coronary artery bypass graft was indicated to relieve symptoms, preserve myocardial function, and extend his life. On March 27, 2003, the Veteran also consented to participate in a research study "Outcomes of Myocardial Revascularization: On and Off Cardiopulmonary Bypass." In April 2003, the Veteran had coronary bypass surgery with an anterior mid-line sternotomy and grafting the left internal mammary artery to the left anterior descending coronary artery and the right internal mammary artery to the distal right coronary artery. In May 2003, the aortic aneurysm was surgically repaired with a left posterolateral thoracotomy incision with entry through the fourth intercostal space with a 2 cm. resection of the posterior aspect of the fifth rib. In both instances, in the postoperative in-patient period the Veteran made stable postoperative progress. Within days after his discharge from the surgery for the aneurysm, the Veteran had severe post-operative pain and was prescribed pain medication. Approximately a month later, the Veteran complained of spasms and he could not get comfortable sleeping. In August 2003, the Veteran stated that the incisional pain at both surgical sites had resovled. VA records show that the Veteran was thereafter treated and monitored for chronic chest wall pain. In September 2003, the Veteran complained of constant sternum pain and pain in the left posterior chest wall and under the left arm, including pain radiating from his neck to his left arm. In February 2004, the Veteran had decreased abduction due to pain and an MRI revealed tendonitis with a possible small tear. It appears from the physician's note that this was a problem separate from his chest wall pain. In June 2004, the Veteran complained of continued pain. The pain, however, returned and in September 2004 the Veteran complained of constant pain in the sternum and pain in the left chest wall. He also experienced pain around the thoracotomy scar. Pain medication and injections had helped. He also complained of a knot in his chest. In December 2004, the Veteran described the pain as throbbing, shooting, stabbing, and sharp. The assessment was post-thoracotomy syndrome and a scar neuroma. There also was myofascial pain in the left posterior shoulder. In February 2005, the Veteran stated that he could not ignore the pain for any length of time although he now averaged 6 to 8 hours of sleep a night and was not awakened by pain. In July 2005, the Veteran submitted a statement that nerves were cut at both surgeries causing problems. The aneurysm repair has caused extreme scarring and pain while the first surgery produced more of a burning pain. He has been advised that the pain would not go away. In August 2005, the Veteran's problems were described as a midline sternotomy neuroma and the second as intercostal neuralgia. In September 2005, the Veteran complained of constant pain from his heart surgery which he described as nerve damage. In February 2006, the VA diagnosed the problem as an anterior chest scar neuroma. On VA examination in March 2006, the Veteran complained of constant pain at the sites of the surgical scars. On evaluation of the surgical scars, the examiner noted a neuroma underneath the anterior chest scar and a neuroma formation in the intercostal nerve. A VA examination of the spine in March 2006, the VA examiner concluded it was less likely than not that degenerative changes of the thoracic resulted from carelessness, negligence, lack of skill, or other fault resulting from the VA surgeries in April and May 2003. On VA muscle examination in March 2006, the VA examiner did not find any associated bone or vascular structure causing the symptoms beyond the surgeries. The surgical scars were noted but other than tenderness, there were no abnormalities such as instability or keloid formation. There also was no loss of muscle function and the examiner concluded that there was no objective data supporting a diagnosis of the muscles. On a VA neurological examination in March 2006, the Veteran complained of nerve pain with the medial and lateral pectoral nerves on the right and the thoracodorsal nerve of the left posterior chest. Upon examination, there was no sensation loss and motor strength was equal and without loss of motion in the shoulders. The examiner concluded there was no objective data supporting a diagnosis of the peripheral nerves. On VA examination in May 2006, the examiner reviewed prior medical records and noted that for both surgeries, there did not appear to be any complications. The examiner, a physician, also stated that the medical records indicated the aneurysm needed to be taken care of. The VA examiner expressed the opinion that the cause of the sternal pain was nonunion of the lower half of the sternum and the back pain was attributable to damage to the thoracic roots due resection of the aneurysm. The VA physician in May 2006 found no fault on the part of VA in the surgical treatment, but did not address whether the chronic pain was an event not reasonably foreseeable. The VA physician stated that the symptoms the Veteran experienced were a frequent consequence of such surgeries and that the Veteran had been informed of the complications of the surgeries. Private medical records, covering the period from August 2007 to January 2009, show that the Veteran was being followed for chronic pain in back and chest wall, following the surgeries by VA. The notes included the Veteran's history that he was advised nerves were cut during the two surgeries in 2003. In accordance with VHA Directive 2006-019, dated April 3, 2006, 38 U.S.C.A. § 5103A, 38 U.S.C.A. § 7109, and 38 C.F.R. § 20.901, the Board requested a VA medical advisory opinion from a VA thoracic surgeon on the following question: Whether the chronic and intractable pain in the back and chest wall, resulting from VA surgical treatment, was an event not reasonably foreseeable? In determining whether an event is reasonably foreseeable, consider whether the risk of the event was the type of risk that a reasonable health-care provider would have disclosed in connection with informed consent. The VHA expert, who is the head of cardiothoracic surgery at a VA Medical Center, responded in July 2009 with a report and citations to the medical literature. The VHA expert stated that chronic, post surgical pain is a well known entity. The VHA expert stated that one source of the pain was the non-union of the lower portion of the sternotomy due to the coronary artery bypass graft. The other source of injury was intercostal nerve injury during the aneurysm surgery. The V HA expert also stated the instability from the sternotomy may have interfered with the healing of the thoracotomy. The VHA expert stated that the sternotomy instability was a well recognized problem. The VHA expert found no clear deviation from the standard techniques during the closure of the sternotomy. The VHA found no carelessness, negligence, lack of proper skill, or error of judgment by the VA surgical treatment in performing the coronary artery bypass in April 2003. The VHA expert stated that the use of the right internal mammary artery might have been questionable and the cause for increased devascularization of the sternum, contributing to the instability. The VHA expert stated that there were advanced techniques for sternal closure but not required by the standard of care. The VHA expert also stated that pain and sternal instability were foreseeable. Turning to the aneurysm repair, the VHA expert stated chronic post thoracotomy pain has been characterized as the primary complication following a thoracotomy and is a well known entity that is entirely foreseeable. It is second only to amputation as a cause of chronic post operative pain. It results usually from some form of impaired nerve healing. There are predisposing factors which include anxiety and depression. The examiner noted the Veteran suffered from posttraumatic stress disorder. The examiner noted many variations of procedure have been tried to eliminate the problem but to no avail and the Veteran had a standard closure. The fifth rib was partial resected which was acceptable. The VHA expert therefore concluded that the chronic pain was reasonably foreseeable especially as to the thoracotomy. Legal Principles As the Veteran's claim under 38 U.S.C.A. § 1151 was received after October 1, 1997, the following statutory and regulatory provisions apply: When a veteran suffers additional disability as the result of surgical treatment by VA, disability compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service- connected. A disability is a qualifying additional disability if the disability was caused by VA treatment, and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical treatment; or the additional disability was not reasonably foreseeable. 38 U.S.C.A. § 1151 (a). Under 38 C.F.R. § 3.361, to establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part, it must be shown that the VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Under 38 C.F.R. § 3.361 (c), a claim based on additional disability due to surgical treatment must meet the causation requirements. To establish causation, the evidence must show that the VA's surgical treatment caused the additional disability. Merely showing that a veteran received treatment and that the veteran has an additional disability does not establish cause. VA treatment cannot cause the continuance or natural progress of a disease or injury for which such care 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 proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361. Under 38 C.F.R. § 3.361, whether the proximate cause of an additional disability is an event not reasonably foreseeable is 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 whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with informed consent. 38 C.F.R. § 3.361(d). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board).) When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Analysis On the question of fault on the part of VA regarding the surgeries in April and May 2003, the VA examiner in May 2006, a physician, and the VHA expert, a cardiac thoracic surgeon, expressed the opinion that the chronic post operative pain was not due to carelessness, negligence, lack of proper skill, or similar instance of fault on part of the VA in providing the surgical treatment of coronary artery disease by a coronary arterial bypass graft and that VA had exercised the degree of care that would be expected of a reasonable health-care provider. This evidence is uncontroverted and is persuasive evidence against the claim of fault on the part of VA in providing the surgical treatment. Likewise, the VA examiner and VHA expert stated that the treatment in May 2003 for surgical repair of an aneurysm conformed to the standard of care and the aneurysm was handled in an appropriate manner. On the question of whether there was additional disability was reasonably unforeseeable, the VA expert stated that the thoracotomy pain is the major post operative complication even in the absence of negligence or a deviation from the standard of care and would be foreseeable to a reasonable health care provider. As to the Veteran's sternal instability and pain, while less common, it was also a well recognized problem even if the complications need not be included in the informed consent process. Once again, this evidence is uncontroverted and is persuasive evidence against the claim based upon the claim that the Veteran's complications were not reasonably foreseeable. To the extent the Veteran's statements are offered as a lay opinion concerning the results of either the sternotomy in the bypass procedure or the thoracotomy, a lay opinion is limited to inferences which are rationally based on the Veteran's perception and does not require specialized knowledge. See generally Fed.R.Evid. 701 (opinion testimony by a lay witness is limited to inferences which are rationally based on the Veteran's perception and does not require specialized knowledge). Although the Federal Rules of Evidence do not apply to veterans' jurisprudence, recourse to the Federal Rules of Evidence is appropriate, where the Rules assist in the articulation of the Board's reason. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (Recourse to the Federal Rules of Evidence is appropriate where the Rules assist in articulation of the Board's reasons for finding a claim not well grounded.); Cf. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (Federal Rules of Evidence for evaluating expert medical opinion before U.S. district courts are important, guiding factors to be used by VA adjudicators in evaluating the probative value of a medical opinion.). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or opinion. 38 C.F.R. § 3.159. Although the Veteran is competent to describe pain, the Veteran has expressed the opinion that the nerve pain was the result of fault on the part of VA. Under certain circumstances, a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competency is a question of fact, which is to be addressed by the Board. Jandreau, 492 F.3d at 1377. Whether the nerve pain was the result of fault on the part of VA cannot be determined by the Veteran's own personal observation, that is, perceived through the use of his senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App 465, 469 (1994) (a witness must have personal knowledge in order to be competent to testify to a matter; personal knowledge is that which comes to the witness through the use of the senses). And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience in health care to offer an opinion on fault on the part of VA regarding the surgery or on the standard of care of a reasonable health care provider, which are factors in determining entitlement to disability compensation under 38 U.S.C.A. § 1151. For these reasons, the Board rejects the Veteran's lay opinion as competent evidence to substantiate the claim on the question of fault of the part of VA. As VA exercised the degree of care that would be expected of a reasonable health care provider in providing the surgical treatment in April and May 2003, that is, in the absence of fault on the part of VA, and as chronic post operative pain was a reasonably foreseeable results of the surgery, namely, the type of risk that is foreseeable to a reasonable health care provider and would have disclosed in connection with informed consent, the Veteran does not prevail on the claim under 38 U.S.C.A. § 1151 As there is no competent evidence of record favorable to the claim, the preponderance of the evidence is against the claim under 38 U.S.C.A. § 1151, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER The Veteran is not entitled to VA disability compensation under 38 U.S.C.A. § 1151 due to surgical in April and May 2003 by the Department of Veterans Affairs, and the appeal is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs