Citation Nr: 1300304	
Decision Date: 01/04/13    Archive Date: 01/11/13

DOCKET NO.  10-38 763	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a tracheostomy performed by a VA physician in July 2007.


ATTORNEY FOR THE BOARD

J. Meawad, Counsel


INTRODUCTION

The Veteran served on active duty from January 1964 to January 1966. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2010 from the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO).

Initially, the RO denied the issues of entitlement to compensation under 38 U.S.C.A. § 1151 for chronic cough and lung condition and entitlement to compensation under 38 U.S.C.A. § 1151 for gastroesophageal reflux disease.  The issues have been recharacterized to comport with the evidence of record.


FINDING OF FACT

The Veteran underwent surgery in July 2007 that was performed by a VA physician, which resulted in tracheal stricture that was not a reasonably foreseeable event.


CONCLUSION OF LAW

The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a tracheostomy performed by a VA physician in July 2007 are met.  38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.361, 17.32 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  The Board is granting in full the benefit sought on appeal.  Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed.  

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; 38 C.F.R. § 3.361.

The Veteran must show that the VA treatment in question resulted in additional disability and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable.  See VAOPGCPREC 40-97; 38 U.S.C.A. § 1151.  In determining whether additional disability exists, VA compares the Veteran's physical condition immediately prior to the surgery upon which the claim for benefits is based with the physical condition after the medical treatment.  38 C.F.R. § 3.361(b).

The medical evidence of record shows that the Veteran received VA treatment in July 2007 for coronary artery disease and myocardial infarction.  He was scheduled for a coronary artery bypass graft (CABG) that was performed by a VA physician later that month at the University Hospital in Arkansas.  While recovering from the surgery, there were some complications and a tracheostomy tube was inserted.  The Veteran improved and the tracheostomy tube was eventually removed prior to discharge.  

The Veteran received VA treatment in October 2007 for an intractable cough, which was found to be most probably related to the tracheostomy.  Gastroesophageal reflux disease (GERD) was also considered as a possible cause of the cough and the Veteran was treated for it.  The Veteran's cough persisted and VA continued to treat him for reflux.  

In June 2009, the Veteran sought private treatment for his persistent cough.  A bronchoscopy revealed displaced tracheal cartilages.  He was diagnosed as having tracheal cartilage protruding into the trachea secondary to the scarring process post-tracheostomy.  In July 2009, the Veteran underwent a cervical tracheoplasty.

The Veteran was afforded a VA examination in December 2009.  The Veteran was diagnosed as having status-post tracheal stricture, status-post surgical correction and GERD.  The examiner stated that esophageal stricture could occur after prolonged endotracheal intubation or occasionally after a tracheostomy and that it was not an expected or foreseeable consequence of either procedure, especially since the advent of nonreactive endotracheal tubes.  Review of the surgical tracheostomy and PEG operative notes indicated no problems in the procedure and it appeared to have been done appropriately.  The examiner opined that it was unlikely that there was any carelessness, negligence, lack of skill, error in judgment or other fault on the part of the Veteran's caregivers which resulted in disability or that this chronic cough was a reasonably foreseeable result of his treatment.  Following review of the July 2007 surgery notes, the examiner stated in a February 2010 addendum, that his opinion was unchanged.  

In December 2010, the VA examiner provided another opinion based on a review of the entire record.  The examiner stated that the Veteran had tracheal stricture, which was an uncommon but occasional complication of prolonged tracheostomy and was due to the pressure of the tracheostomy tube against the wall of the trachea.  He opined that the tracheal stricture did not result from carelessness, negligence, lack of skill or similar fault on the part of the VA personnel and may result from an event that would have not been reasonably foreseen by a health care provider.   

The medical evidence of record clearly demonstrates that the Veteran's tracheal stricture resulted from the tracheostomy performed by the VA physician in July 2007.  The VA examiner twice opined that the tracheal stricture was not a reasonably foreseeable result of his treatment.  The examiner provided a cogent rationale and based the opinion upon review of the claims file and a physical examination.  The Board finds the opinion probative and persuasive.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000).  

Accordingly, as the evidence of record establishes a link between VA treatment in July 2007 and the subsequent tracheal stricture requiring cervical tracheoplasty, entitlement to compensation benefits under 38 U.S.C.A. § 1151 is warranted.






ORDER

Compensation under 38 U.S.C.A. § 1151 for residuals of a tracheostomy performed by a VA physician in July 2007 is granted.





____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs