Citation Nr: 1307285 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 06-23 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a left leg neurological disorder as a result of an aortogram provided at a VA medical facility in March 2005. 2. Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a left wrist/hand neurological disorder as a result of an aortogram provided at a VA medical facility in March 2005. REPRESENTATION Appellant represented by: Joseph R. Moore, Esq. WITNESSES AT HEARING ON APPEAL Appellant and his sister ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served as a member of the United States Navy, with active service from November 1981 to October 1988. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2006 rating decision rendered by the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska (the RO). The Veteran and his sister testified at a Travel Board hearing which was chaired by the undersigned at the Lincoln RO in July 2007. See 38 U.S.C.A. § 7107(c) (West 2002). A transcript of the hearing has been associated with the Veteran's VA claims folder. After an October 2008 remand, the Board in April 2011 denied the claims for both disabilities. The Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court). In May 2012, the Court issued an order granting a joint motion to remand. After the case returned to the Board, the appellant's counsel submitted a medical opinion addressing the nerve damage in the left lower extremity and waived agency of original jurisdiction consideration of such evidence. 38 C.F.R. § 20.1304 (2012). The issue of entitlement to a total disability rating based on individual unemployability (see June 2005 claim, page 2) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a left wrist/hand neurological disorder as a result of an aortogram provided at a VA medical facility in March 2005 is addressed in the REMAND portion of the decision below and is REMANDED to the RO. FINDINGS OF FACT 1. The preponderance of the competent medical and other evidence of record shows that the Veteran's March 29, 2005, repair of the left superficial femoral artery dissection was a complication of the March 24, 2005, aortogram and resulted in an additional left leg neurological disability. 2. The preponderance of the competent medical and other evidence of record shows that the need for the March 29, 2005, repair of the left superficial femoral artery dissection was caused by the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care in performing the March 24, 2005, aortogram. CONCLUSION OF LAW The criteria for entitlement to compensation for additional left leg neurological disability under the provisions of 38 U.S.C.A. § 1151 have been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the fully favorable decision below, a detailed explanation of how VA complied with the VCAA is unnecessary. Although the joint motion for remand directs the Board to obtain any informed consent document pertaining to the March 2005 VA aortogram, the Veteran's counsel has already had the Omaha VA Medical Center search for that document and he acknowledges that based on their response, the document is unavailable. More importantly, as determined below, the Board finds that there was the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care in performing the March 24, 2005, aortogram. Therefore, the Board does not have to address whether the left leg disability was reasonably foreseeable and whether the risk of that disability was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. Effective October 1, 1997, the United States Congress amended 38 U.S.C.A. § 1151. See § 422(a) of PL 104-204. The purpose of the amendment was, in effect, to overrule the United States Supreme Court decision in Brown v. Gardner, 115 S. Ct. 552 (1994), which held that no showing of negligence was necessary for recovery under § 1151. In pertinent part, § 1151, as amended, reads as follows: Compensation under this chapter and dependency and indemnity compensation under chapter 13 of this title shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, 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 as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was: (A) 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 (B) an event not reasonably foreseeable. See 38 U.S.C.A. § 1151. From the plain language of the statute, it is clear that to establish entitlement to § 1151 benefits, all three of the following factors must be shown: (1) Disability/additional disability, (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability, and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. For all claims received after October 1, 1997, 38 C.F.R. § 3.361 is the regulation that implements 38 U.S.C.A. § 1151. 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. VA considers each body part involved or system separately. See 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish causation. See 38 C.F.R. § 3.361(c)(1). 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, the Veteran must show that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death, and VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or 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. See 38 C.F.R. § 3.361(d)(1)(ii). Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b). Id. Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is determined based on what a reasonable health care provider would have foreseen. See 38 C.F.R. § 3.361(d)(2). 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. Id. 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 the informed consent procedures of 38 C.F.R. § 17.32. Id. The Veteran claims benefits pursuant to 38 U.S.C.A. § 1151 for an additional disability resulting from an aortogram and thromboembolectomy performed at a VA hospital on March 25, 2005 and March 29, 2005, respectively. Specifically, the Veteran alleges that the aortogram resulted in a need for the March 29, 2005, repair of the left superficial femoral artery dissection that resulted in nerve damage in his left lower extremity. A review of the VA treatment records reflects that only a few days after the aortogram, the Veteran presented with complaints of pain in the lower left extremity. Further testing at that time revealed an occlusion of the left superficial femoral artery, and thus, the thromboembolectomy was performed. After the thromboembolectomy was performed, the Veteran was released from the hospital with a Jackson-Pratt (JP) drain in his left groin to facilitate healing. Concerning the Veteran's lower left extremity, the medical evidence shows that it is practically uncontroverted that the Veteran incurred an additional neurological disability as a result of the surgery performed on March 29, 2005. Specifically, a September 2005 electromyogram (EMG) reflects that the Veteran evidenced symptomatology congruent with left posterior tibial mononeuropathy and complex regional pain syndrome with superimposed left posterior tibial ischemic mononeuropathy. VA treatment records reflect a diagnosis of neuropathic pain in the left lower extremity. While the September 2005 VA examiner was unable to provide a specific diagnosis on this issue without resort to mere speculation, the diagnoses and opinions of the July 2009 and March 2010 VA examiners are congruent and uniform on this point. The July 2009 and March 2010 VA examiners opined that it is at least as likely as not that the current left lower extremity neuropathy is due to or the result of the complications stemming from the March 2005 aortogram with subsequent surgical procedures. Additionally, a private September 2005 examination performed by D.G.R., M.D. in connection with the Veteran's claim for Social Security disability benefits notes the Veteran's left leg neurological disorder as a complication of the thromboembolectomy. In the January 2013 private medical opinion submitted by the Veteran's counsel, P.C., M.D. stated that the appellant suffered complications of an aortogram that included arterial dissection and thromboembolism, which eventually led to left posterior tibial mononeuropathy and complex regional pain syndrome with superimposed left posterior tibial ischemic mononeuropathy. The VA doctor who prepared the April 2006 VA medical opinion, however, stated that resultant discomfort in the left lower extremity is consistent with the ongoing peripheral vascular disease and not a neurological deficit. While the Board is not free to ignore the opinion of a treating physician, neither is it required to accord it additional weight. Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). The United States Court of Appeals for the Federal Circuit (the Federal Circuit) has declined to adopt a "treating physician rule," which would give preference, i.e., additional evidentiary weight, to this type of evidence. White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has also held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). A medical opinion may not, however, be discounted solely because a medical professional did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Rather, the question is whether the medical professional was informed of all relevant facts in rendering a medical opinion. Id. The VA examiners and Dr. P.C. had additional records, specifically more recent treatment records on the nature of the disability in the left lower extremity, than the VA doctor who rendered an opinion in April 2006. The Board places great weight on the favorable medical opinions. Therefore, the preponderance of the competent medical and other evidence of record shows that the Veteran's March 29, 2005, repair of the left superficial femoral artery dissection was a complication of the March 24, 2005, aortogram and resulted in an additional left leg neurological disability. With respect to carelessness, negligence, lack of proper skill, error in judgment or other instance of fault proximately caused the additional disability, the Board notes that there are four medical opinions of record - three of which are unfavorable to the Veteran's claim. The VA doctor who provided the April 2006 opinion and the July 2009 and March 2010 VA examiners stated that there was no evidence that the March 24, 2005 or March 29, 2005 operation reports and/or resulting treatment notes reflected evidence of carelessness, negligence, errors or judgment, lack of proper skill, or fault on the part of VA personnel. The reports of these VA examinations are uniform in asserting that VA professionals discharged their duties in an appropriate manner. See the April 2006, July 2009 and March 2010 VA examination reports as well as the June 2006 addendum. The Board notes that the Veteran, his counsel, and Dr. P.C. have asserted that the VA medical professional who conducted the March 24, 2005, aortogram acted with negligence by utilizing an Angio-Seal device. In support of this assertion, the Veteran has submitted medical treatise evidence in the form a pamphlet on the Angio-Seal device and Internet articles as well as the Dr. P.C.'s statement. The July 2009 and March 2010 VA examiners noted that use of the Angio-Seal device would only be precluded if there was a puncture to the superficial femoral artery. Upon review of the Veteran's complete VA claims file, to include the March 24, 2005, operation report, the July 2009 and March 2010 VA examiners stated that the access had been gained during the aortogram through the left common femoral artery and that there was no evidence that the left superficial femoral artery was punctured. Dr. P.C. addressed these assertions. The private doctor noted that while there was no mention in the aortogram treatment records of any complications or other problems with the procedure, but that the interventionist radiologist contacted a vascular surgeon during the procedure to discuss the results before an Angio-Seal device was used to obtain hemostasis. Dr. P.C. indicated that the Angio-Seal device would be located at the precise spot where the artery was initially accessed. Dr. P.C. reviewed the March 29, 2005, surgical records and noted the superficial femoral artery was injured and needed repair. That doctor stated that the Angio-Seal device was found on the left superficial femoral artery, not the common femoral artery, and that the device was the root cause of the occlusion. The doctor concluded that the surgical report contradicts the assertion of the records from the aortogram that access was obtained through the left common femoral artery. The doctor determined that the surgical evidence is incontrovertible that access was made through the left superficial femoral artery and that based on the manufacturer's product warning, the Angio-Seal device was improperly deployed. Dr. P.C. provided two possible explanations for why the Angio-Seal device was found on the left superficial femoral artery. First, the interventional radiology team did not know that they had accessed the superficial femoral artery. The doctor thought that possibility was highly unlikely given that they had a real-time fluoroscopic view of all the blood vessels as well as their access catheter. Dr. P.C. opined that if there was confusion as to the anatomy of the area, this certainly demonstrated carelessness and a lack of proper skill to perform this procedure. Second, the team knew that they had accessed the superficial femoral artery but that they decided to use the Angio-Seal device anyway. The doctor indicated that this possibility seems more likely because a vascular surgeon was consulted before the decision to deploy the Angio-Seal device was made. Dr. P.C. concluded that this scenario demonstrated a level of negligence and error in judgment as the product literature is clear that it should not be used after accessing the Angio-Seal device. The Board notes that none of the VA medical professionals addressed how and why the Angio-Seal device was found on the left superficial femoral artery as opposed to the left common femoral artery, the artery that was alleged accessed. Therefore, these opinions are of low probative value. The Board places great weight on the opinion of Dr. P.C. because he addresses the possible explanations for how and why the Angio-Seal device was found on the left superficial femoral artery. Hence, the preponderance of the competent medical and other evidence of record shows that the need for the March 29, 2005, repair of the left superficial femoral artery dissection was caused by the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care in performing the March 24, 2005, aortogram. The benefit sought on appeal is accordingly allowed. ORDER Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a left leg neurological disability as a result of an aortogram provided at a VA medical facility in March 2005 is allowed. REMAND The Veteran was hospitalized from March 29, 2005, to April 5, 2005, at the Omaha VA Medical Center for treatment of the left superficial femoral artery occlusion. Given that the Board has granted entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a left leg neurological disability as a result of an aortogram provided at a VA medical facility in March 2005, the question remains as to whether there is an additional left hand/wrist neurological disability resulting from the IV placement during that hospitalization. Various neurological disorders in the left upper extremity, including a complex regional pain syndrome, have been diagnosed. The March 2010 VA examiner did not address whether the Veteran has had a complex regional pain syndrome since the March-to-April-2005 VA hospitalization and his opinion on whether the left cubital tunnel syndrome is related to the IV placement is inadequate. Therefore, another VA examination by someone who is not affiliated with the Omaha VA Medical Center is necessary. The RO last obtained records from the Omaha VA Medical Center in September 2008. The RO should obtain all records from the Omaha VA Medical Center since September 2008. The RO last asked the Veteran to identify treatment for his left arm/hand neurological disorder in September 2005. The RO should ask the appellant to identify all treatment for his left arm/hand neurological disorder. Virtual VA shows that the RO has adjudicated another claim. Therefore, a temporary claims file exists and the RO should associate with it with the Veteran's claim file. Accordingly, the case is REMANDED for the following action: 1. The RO should associate the Veteran's temporary claims file with his claims file. 2. The RO should ask the Veteran to identify all sources of treatment his left arm/hand neurological disorder. Thereafter, the RO should attempt to obtain any identified records. Regardless of the appellant's response, the RO should obtain all records from the Omaha VA Medical Center since September 2008. Any records obtained should be associated with the Veteran's claims folder. 3. Thereafter, the RO should schedule the Veteran for a neurological examination by someone who has not already examined him and who is not affiliated with the Omaha VA Medical Center to determine the nature and extent of his left arm/hand neurological disorder. The claims file must be made available to the examiner. The examiner should: (a) identify all disabilities involving the left arm and hand that the Veteran has had since he was hospitalized from March 29, 2005, to April 5, 2005. If a complex regional pain syndrome is not shown at any time since his 2005 hospitalizations, the examiner should comment on the validity of the suggested diagnosis of that disorder on the September 2005 VA EMG. (b) For each disability of the left arm and hand identified that did not preexist the March 29, 2005, to April 5, 2005, VA hospitalization, the examiner should determine whether there is a 50 percent or greater probability that each diagnosed disorder was caused or aggravated by the IV placement in the left upper extremity during the VA hospitalization from March to April 2005. (c) For each disability of the left arm and hand that did preexist the March 29, 2005, to April 5, 2005, VA hospitalization, the examiner should determine whether there is a 50 percent or greater probability that each diagnosed disorder was aggravated by the IV placement in the left upper extremity during the VA hospitalization from March to April 2005. A complete rationale for the opinions expressed should be provided. 4. The Veteran is to be notified that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 5. After the development requested, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 6. Thereafter, the RO should readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and his counsel should be provided with a Supplemental Statement of the Case. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs