Citation Nr: 1318365 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 03-30 723 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals, dissection and occlusion of catheterization of left internal mammary artery. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran had active service from December 1961 to November 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in September 2002 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Board initially decided this matter in November 2007. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In December 2009, the Court vacated the Board's November 2007 decision, and remanded this matter to enable VA to fully develop evidence relating to a new allegation asserted by the Veteran before the Court. Consequently, in July 2010, the Board remanded the claim for further development and it has since returned for further appellate consideration. The Board also notes that in a February 2004 rating decision, the RO denied the Veteran's service connection claims for bilateral hearing loss and tinnitus. The Veteran filed a notice of disagreement in November 2004 and the RO issued a statement of the case (SOC) in April 2007. However, the Veteran did not file an appeal within 60 days of the SOC. Thus, those service connection claims are not in appellate status. FINDINGS OF FACT 1. On March 28, 2001, the Veteran underwent cardiac catheterization surgery in VA hospital, at which time he experienced a left internal mammary artery (LIMA) dissection. 2. This cardiac catheterization surgery was done under local anesthesia and was performed without informed signed consent. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151 for residuals of dissection and occlusion of catheterization of left internal mammary artery, as a result of VA surgical treatment in March 2001, have been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.361, 17.32 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran claims entitlement to service connection under 38 U.S.C.A. § 1151 for complications related to VA heart surgery he underwent in March 2001. Under 38 U.S.C.A. § 1151 (West 2002), compensation 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 the disability was caused by hospital care, medical or surgical treatment, or examination furnished such Veteran under any law administered by the Secretary, 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. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2012). 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 or medical or surgical treatment 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 or medical or surgical treatment without the Veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). In addition, signature consent is required for all diagnostic and therapeutic treatments or procedures that (i) require the use of sedation; (ii) require anesthesia or narcotic analgesia; (iii) are considered to produce significant discomfort to the patient; (iv) have a significant risk of complication or morbidity; (v) require injections of any substance into a joint space or body cavity; or (vi) involve testing for Human Immunodeficiency Virus (HIV). The informed consent process, including signed consent form, must be filed in the patient's health record. 38 C.F.R. § 17.32(d) (2012). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient's surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. 38 C.F.R. § 17.32(c). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. By way of history, the medical evidence of record establishes that the Veteran has coronary artery disease, left ventricular dysfunction, and unstable angina. In 1991, he underwent coronary artery bypass surgery in a private hospital. On March 28, 2001, the Veteran underwent heart catheterization surgery, under local anesthesia, at a VA hospital. During such procedure, he experienced a LIMA dissection. A March 28, 2001 treatment record indicates, "Dr. Freeman here to do consent." And a March 28, 2001 cardiac catheterization report indicates, "[i]nformed consent was obtained." In April 2001, the Veteran suffered a myocardial infarction. VA examination reports dated in March and August 2003 do not offer substantive information on the essential issue in this case. The March 2003 examiner reviewed the facts related to the Veteran's heart disorder and to his March 2001 VA cardiac surgery. But the examiner stated that he was not an expert in cardiac catheterization and therefore was not qualified to judge the March 2001 VA care. Similarly, the August 2003 VA examiner reviewed the Veteran's medical history. But this examiner stated that he was unable to comment on the issue because he was not present at the Veteran's March 2001 surgery. Therefore, to resolve the issue on appeal, the Board requested an opinion from an independent medical examiner (IME), which was received in August 2007. After a review of the record, the IME stated that LIMA dissection is an uncommon but well described complication of diagnostic catheterization surgery, and found no indication of fault on the part of VA in its March 2001 surgical care of the Veteran. Although the IME found no fault on the part of VA, the Board still finds that the Veteran is entitled to compensation under 38 U.S.C.A. § 1151 for residuals, dissection and occlusion of catheterization of left internal mammary artery, due to the surgical procedure performed by VA in March 2001. The Veteran's primary contention is that VA was negligent in that it failed to obtain from him sufficient informed consent prior to the surgery. Initially, the Board notes that the evidence shows that the Veteran's LIMA dissection occurred during the March 2001 VA cardiac catheterization surgery. Indeed, the IME stated that it is a foreseeable (yet uncommon) outcome of the type of surgery performed on the Veteran. The Board's allowance in this case rests on the fact that there is no signed informed consent form in the record. Although the VA treatment and catheterization notes state that informed consent was obtained, such does not meet the mandatory requirements of 38 C.F.R. § 17.32. The Board remanded the Veteran's claim in order for that form to be obtained and included in the record, yet no such document could be found. See February 2013 memorandum from the RO/AM regarding the unavailability of an informed consent form for the March 28, 2001, surgical procedure. In other words, no signed consent form exists for the Veteran's cardiac catheterization, which was performed under local anesthesia. Thus, notwithstanding the medical records and the 2007 IME opinion, there is no evidence of record showing that VA obtained a signed informed consent from the Veteran under the requisites of 38 C.F.R. § 17.32 prior to the March 2001 surgical procedure. The Veteran has stated that he does not recall ever signing a consent form for his March 2001 surgery. As such, there was fault on VA's part in furnishing the surgical treatment, and the Board concludes that the criteria for compensation benefits under the provisions of 38 U.S.C.A. § 1151 for residuals, dissection and occlusion of catheterization of left internal mammary artery have been met. In light of the favorable determination contained herein, further development with regard to VA's duties to notify and assist as set forth by the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). ORDER Entitlement to VA compensation under 38 U.S.C.A. § 1151 for residuals of dissection and occlusion of catheterization of left internal mammary artery is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs