Citation Nr: 1322350 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 12-17 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a heart attack, or myocardial infarction. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Reno, Nevada. Presently, the RO jurisdiction is in Indianapolis, Indiana. In June 2011, the Veteran testified at a Decision Review Officer (DRO) hearing at the RO in Indianapolis, Indiana. In October 2012, the Veteran testified at a Board hearing via videoconference before the undersigned Acting Veterans Law Judge (AVLJ). Transcripts of both hearings are associated with the claims file. Following the October 2012 hearing, the undersigned held the record open for 60 days for the submission of private medical records identified by the Veteran at the hearing. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issue on appeal. FINDING OF FACT The competent and probative evidence fails to demonstrate that the Veteran incurred additional disability as a result of VA treatment, hospital care, or medical treatment, to include failure to timely diagnose and treat a heart condition which eventually led to the onset of a heart attack. CONCLUSION OF LAW Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a heart attack, or myocardial infarction, is not established. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must (1) notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, (3) and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided a pre-adjudication VCAA notice by letter dated in April 2009. The Veteran was notified of the evidence needed to substantiate the claim of entitlement to compensation under 38 U.S.C.A. § 1151, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Hence, the notice was adequate and timely. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate this claim, including outstanding VA and non-VA treatment records. It also obtained a VA medical opinion in April 2012 in connection with this claim. As discussed further below, the Board finds the April 2012 VA medical opinion obtained in this case to be more than adequate, as it is predicated on a full reading of the claims file and available treatment records. Additionally, the report provides an opinion as to whether VA's failure in detecting the Veteran's completely clogged artery, or diagnosis of a heart condition which led to the onset of his heart attack, fell outside the expected standard of care and resulted in additional disability that is adequately supported by the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. See Washington v. Nicholson, 21 Vet. App. 191 (2007). In this regard, he testified at a hearing before the Board in October 2012 at which time he was notified of the issues on appeal and the need to submit evidence that may have been previously overlooked. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). As noted above, the record was held open for a 60-day period following the hearing to allow for the submission of additional evidence. Thereafter, in October 2012, the Veteran signed and resubmitted a VA Form 21-4142 authorization and release for private medical records from Dr. A.H. at Black Mountain Medical Group in Henderson, Nevada, for the listed period of February 2009. At the October 2012 Board hearing, the Veteran stated that he sought follow-up treatment from Dr. A.H. for approximately two months following the stent procedure in February 2009. In December 2012, VA requested medical records via facsimile using the October 2012 release form, but sent the request to the wrong provider (i.e., Nevada Heart & Vascular Center in Las Vegas). There is no indication that any further action was taken to obtain records referenced in the Veteran's October 2012 release form. The Board notes, however, that a remand to obtain these records is unnecessary. In this regard, the record indicates that in May 2009, the Veteran signed and submitted a VA Form 21-4142 authorization and release for medical records from Dr. A.H. at Black Mountain Medical Group for the same time period of February 2009. Records from February 2009 were then obtained, associated with the claims file, and considered for this matter on appeal. The Board acknowledges that a progress note by Dr. A.H. dated February 25, 2009 (follow-up at St. Rose Dominican Hospital post-stent placement) indicates that his next follow-up visit would be in three months; this is later than the time frame indicated by the Veteran during the hearing. There is no evidence of record that the Veteran followed up with Dr. A.H. after three months from February 2009, and in fact he testified that he did not continue care with Dr. A.H. because VA would not authorize payment of such treatment. Given these facts, the Board finds that further pursuit of records from Dr. A.H. is unnecessary as all relevant records are associated with the claims file. The Board also acknowledges that the Veteran testified that he was going to submit a statement from Dr. A.H. in support of his appeal. To date, no statement has been received. The Board notes that VA's duty to assist is not a one-way street, and in this case, he was given ample time to submit evidence (i.e., 60 days) but failed to do so. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Hence, at this juncture, the Board finds that proceeding with a determination in this matter does not prejudice the Veteran. Regarding evidence in VA's possession, the Board acknowledges that during the hearing the Veteran indicated that he was being seen by VA cardiology every three to six months for blood work, tests, and follow-up care. Treatment reports already of record show sporadic follow-up care has been sought since February 2008. The latest VA treatment report of record, however, is dated September 2009. Thus, it appears more current VA treatment reports exist. Pertinent to this appeal, the Veteran did not indicate during his hearing (or at any other time during this appeal) that any of his VA treatment providers informed him that VA failed to provide a standard of care which was appropriate and would have prevented his subsequent heart attack. As such, the Board finds no reason to pursue additional VA treatment records at this time as there is no indication that any such outstanding treatment records are relevant to his claim on appeal. In sum, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Legal Criteria and Analysis Under the provisions of 38 U.S.C.A. § 1151, VA must pay compensation to a veteran in the same manner as if such disability or aggravation of disability were service-connected if the veteran suffers from additional disease or injury, or an aggravation of an existing disease or injury, caused as a result of VA hospital care, medical or surgical treatment, or examination. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2012). For claims filed on or after October 1, 1997, as in this case, a veteran is required to show fault or negligence in medical treatment. Specifically, it must be shown that the proximate cause of additional disability was either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the care, treatment, or examination, or was an event that was not reasonably foreseeable. 38 U.S.C.A. § 1151(a)(1); 38 C.F.R. § 3.361. In other words, it must be shown that VA either failed to exercise the degree of care that would be expected of a reasonable health care provider, or the care, treatment, or examination was furnished without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1). When compensation is claimed for the continuance or natural progress of a disease, injury, care, treatment, or examination furnished by the VA cannot be said to have caused additional disability 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). In other words, (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. VAOPGCPREC 05-01; see also 38 C.F.R. § 19.5 (2010) (stating that the Board is bound by precedent opinions of the VA's General Counsel). The Board acknowledges that these elements were delineated by VA's General Counsel as part of the version of 38 U.S.C.A. § 1151 effective for claims filed prior to October 1, 1997. However, despite the fact that the law in effect at such time did not contain a "fault" requirement as it now does, the courts have determined that it is impossible to delineate proximate cause without speaking in terms of duty when considering a claim based on failure to diagnose, even for claims filed prior to the change in law. Roberson v. Shinseki, 607 F.3d 809, 816 (Fed. Cir. 2010), aff'g 22 Vet. App. 358 (2009). As such, there has been no real change in the standard of these particular claims and the elements delineated by VA's General Counsel remain relevant to claims filed after October 1, 1997, such as the present appeal. The Veteran asserts that he is entitled to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a heart attack. He specifically contends that the VA medical center in Las Vegas, Nevada made an error in judgment in May 2008 and was negligent in failing to correctly diagnose the Veteran's heart condition (e.g., failing to notice that he had a completely blocked artery), and that the delay in treatment ultimately resulted in a heart attack in February 2009. Las Vegas VA medical center treatment notes indicate that in September 2007, the Veteran established new patient care and underwent a health assessment. An examination revealed that the Veteran had hypercholesterolemia and tobacco use disorder (for which he refused counseling). In October 2007, the Veteran was counseled on smoking and was given medication for his cholesterol. In May 2008, the Veteran reported to the Las Vegas VA medical center complaining of acute chest pain for the past month, and more frequently in the last few days. He was subsequently admitted into inpatient care and received treatment due to his apparent symptomatology and prior medical history. He was given aspirin and other medication, to include nitroglycerin paste, and the chest pains partially subsided. The Veteran underwent several diagnostic tests, to include blood work, X-rays, EKGs, and a cardiac stress test, as performed by a cardiologist. The nuclear cardiac perfusion test, or stress test, showed no reversible myocardial defects. It was noted that the stress test was limited due to the Veteran's heart rate, but was consistent with adequate stress and underlying ischemia, which could not be completely excluded. Findings from the cardiac stress test showed abnormality because of EKG changes representing myocardial ischemia; thus, the cardiologist found that this study was suggestive of coronary artery disease, though it was not confirmed. Furthermore, the cardiologist found that there was a mild defect in the inferior wall which was mostly consistent with gastrointestinal attenuation, but no wall motion abnormalities, normal heart size, and an ejection fraction of 68 percent. The Veteran was also found to have elevated cholesterol. The discharge diagnosis ruled out acute coronary syndrome, but noted the possibility of underlying coronary artery disease. Upon discharge, he was prescribed medication to treat his cholesterol, along with aspirin and nitroglycerin, and was given instructions on diet, counseled on smoking, and was encouraged to follow up with both cardiology and his primary care provider. The Veteran's condition at discharge in May 2008 was improved. A cardiology consultation conducted one day after discharge indicates that the Veteran's chest pain was most likely noncardiac and a cardiac catheterization was not prescribed at this time. In June 2008, the Veteran had another follow-up medical visit with cardiology. The report notes a normal echocardiogram and a stress test revealed no reversible myocardial ischemia, but that chest pain was present during recovery period of the stress test. The cardiologist's impression was chest pain cause to be determined and hyperlipidemia. The Veteran was advised to cease smoking and he was told to follow up with a cardiology appointment in three months. The records do not indicate that the Veteran sought further follow-up cardiology care through VA. In February 2009, the Veteran admitted himself at Boulder City Hospital. Treatment notes indicate that he suffered a myocardial infarction after a strenuous hike. It was noted that the Veteran has had no prior history of chest pain on exertion or shortness of breath prior to this incident. At Boulder City, the Veteran was shown to have elevated cardiac enzymes, so he was taken to St. Rose Dominican Hospital for an urgent cardiac catheterization. He ultimately received a placement of two stents at St. Rose as performed by a private physician, Dr. A.H., who is with the Black Mountain Medical Group. A February 2009 follow-up progress note by Dr. A.H. (post-stent placement) reveals that the Veteran denied chest pain and shortness of breath. The examination results were unremarkable. The Veteran was instructed to follow-up with Dr. A.H. in three months. As mentioned earlier, the Veteran indicated during his Board hearing that he had follow-up care with Dr. A.H. for approximately two months following the stent procedure, but that he eventually ceased seeing Dr. A.H. and was instead being followed by VA cardiologists. The Veteran filed his claim under 38 U.S.C.A. § 1151 in March 2009. In statements and testimony from DRO and Board hearings, the Veteran averred that after the stent placement operation, he spoke with Dr. A.H. and asked some questions, including the reason why he (the Veteran) suffered the heart attack. The Veteran indicated that after Dr. A.H. placed the stents, Dr. A.H. told him that the VA medical center should have found artery blockage when they had him in for the battery of tests, as a completely blocked artery is a result of build up over the years. Based on Dr. A.H.'s words, the Veteran claimed that VA should have caught the problem with his arteries when they ran tests in May 2008. In April 2012, a VA medical opinion was obtained to determine if the Veteran's additional heart disability (i.e., heart attack) was caused by negligent VA medical care by the Las Vegas VA medical center or by some unforeseeable complication resulting from the care. After a review of the evidence, to include the claims file and all medical and lay evidence of record, the VA examiner ultimately opined that the Veteran's heart attack is less likely than not caused by negligent VA medical care or by some unforeseen complication of the VA medical care. The examiner noted the results from the battery of tests performed in May 2008 and also noted the cardiologist's impression from the June 2008 follow-up visit. The examiner reviewed the evidence surrounding the Veteran's admission into the hospital for his heart attack and the cardiac catheterization where the Veteran was found to have occlusive coronary artery disease and had a stent placement performed. In rendering an opinion, the VA examiner stated that cardiac catheterization is "the gold standard for diagnosis of coronary artery disease" and that is "an invasive procedure." She explained that "[i]ndications for cardiac catheterization include, [sic] to determine presence and severity of various cardiac impairments," but that this procedure "holds several potential complications" and that the "[b]enefits and risks . . . must be individually considered for every patient in every patient situation." She also explained that coronary artery disease can be managed either medically or with intervention, and noted that the Veteran had medical management prescribed for his May 2008 symptoms which at the time suggested possible coronary artery disease. There was no medical evidence that the Veteran was told he definitely did not have coronary artery disease or that he should not follow up for continued care and monitoring. Based on the evidence and her medical knowledge, the VA examiner concluded that there was no evidence that the standard of care the Veteran received at the Las Vegas VA medical center was substandard. Additionally, there was no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical care that the Veteran received. The VA examiner found that the Veteran had appropriate care with medical management and follow-up visits planned for evaluation for an individual at high risk for coronary artery disease, and that he had the following risk factors for the heart attack - hyperlipidemia, smoking, and being male. In light of pertinent regulations and legal authority, and after careful consideration of the evidence of record, the Board finds that the competent and probative evidence of record shows that the Veteran did not incur a heart attack as a result of substandard VA treatment, hospital care, or medical treatment, to include failure to timely diagnose and treat a heart condition which eventually led to the onset of a heart attack in February 2009. As such, compensation is not warranted for residuals of a heart attack under the provisions of 38 U.S.C.A. § 1151. As previously mentioned, the Veteran specifically contends that the VA medical center in Las Vegas, Nevada was negligent in failing to correctly diagnose the Veteran's heart condition at the time of the May 2008 visit (e.g., failing to notice that he had a completely blocked artery), and that the delay in treatment ultimately resulted in him incurring a heart attack in February 2009. As discussed immediately hereafter, the Board finds that the competent and probative evidence fails to support such assertions. More specifically, the evidence does not show that VA failed to timely diagnose and/or treat a heart condition. Instead, the evidence shows that upon VA treatment in May 2008, the Veteran underwent an examination and a series of tests that were administered based on a consideration of the Veteran's medical history and report of symptomatology. The Veteran, upon admission into in-patient care, was given several different kinds of medication and responded with improvement (chest pains subsided). Blood work, EKGs, x-ray studies, and a cardiac stress test were conducted. Although the stress test was limited due to the Veteran's heart rate at the time, the cardiologist considered that fact when concluding that he had underlying ischemia which could not be completely excluded. Based on the studies, the cardiologist believed the results may indicate coronary artery disease. Upon discharge, the Veteran was prescribed medication to treat his cholesterol which was found to be elevated upon examination, and nitroglycerin, and given instructions for diet, not smoking, and was encouraged to follow-up. Upon discharge, the Veteran's cardiac condition had improved. A cardiac consultation the next day revealed that based on the results of the performed studies and the Veteran's response to the medications, the cardiologist found that the Veteran's chest pains were most likely non cardiac. In the June 2008 follow-up visit, based on the results of the examination, the cardiologist did not find that it was necessary to order a cardiac catheterization (cause of chest pain was to be determined). The only way to properly identify and diagnose a clogged artery would be to obtain a cardiac catheterization. The April 2012 VA examiner explained that such a procedure is invasive and could result in potential complications, thus prescribing such a procedure is a careful process. Thus, the Board finds that the discussion of a failure to diagnose also involves the discussion of whether or not VA should have performed a cardiac catheterization in May 2008. The competent and probative evidence reflects that VA was not negligent in May 2008 when the treating medical professionals did not perform a cardiac catheterization based upon the results of the cardiac test studies and the Veteran's improvement in cardiac health during his in-patient hospitalization. The April 2012 VA examiner stated that coronary artery disease can be managed either medically or with intervention, and the record reflects that the Veteran was treated with medical management for his possible coronary artery disease and intervention by way of counseling on diet, not smoking, and follow-up care in May 2008. As there is no competent evidence of record even suggesting that medical management was inappropriate, the Board finds that VA was not negligent in deciding not to perform the cardiac catheterization. The probative evidence suggests that the proper diagnostic tests were performed and the proper treatment was administered given the results of the tests (medication management). There is nothing of record, other than the Veteran's own statements and statements he avers Dr. A.H. told him after the stent placement, that the battery of tests and treatment provided by VA in May 2008 was not an appropriate or effective treatment for a possibility of coronary artery disease. And as the Board is of the opinion that a determination regarding the suitability and efficacy of diagnostic tests and treatment is not something within the purview of a person without some medical training or background, to the extent that the Veteran is making his own assessment that the tests and treatment administered by the VA were inappropriate, such statements cannot be accepted as competent evidence regarding this issue. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board fully recognizes that the Veteran is competent to report what his doctor (Dr. A.H.) relayed to him. See Jandreau, 492 F.3d at 1377. However, even when considering the Veteran's statements from Dr. A.H., which are merely speculative and vague statements going towards what the VA should have done in May 2008, the Board finds the evidence still preponderates against this claim. In this regard, the Board concludes that the statements of the April 2012 VA examiner are much more probative than any bare conclusory statement that VA should have diagnosed coronary artery disease in May 2008. As previously discussed, the statements of the April 2012 VA examiner were based on a review of the Veteran's entire case file, to include all of the medical and lay evidence of record. Furthermore, the opinion included a reasoning based in medical principles and the particular facts of this case. Thus, the most probative evidence of record clearly demonstrates that the actions of VA in the course of treatment of the Veteran were not improper, careless, or negligent in any way. In addition to finding that the VA did not fail to timely diagnose and/or treat the Veteran for his heart condition, the Board concludes that the competent and probative evidence of record fails to show that he has suffered an additional disability (residuals of a heart attack) as a result of VA's actions, regardless of whether such actions were proper or improper. In this regard, the Veteran offers the statements (as told to him) by Dr. A.H. Dr. A.H.'s statements as relayed through the Veteran are vague without specific details or reasoning, and a review of the Veteran's private treatment records show no indication that Dr. A.H. was informed of all of the facts at the time he responded to the Veteran's inquiry regarding the cause of heart attack. Nor do the treatment records show any indication that the Veteran had any cardiac symptomatology prior to February 2009 that would indicate that his arteries were completely clogged. The evidence of record suggests that he initially sought VA treatment with respect to his cholesterol in September 2007. The Veteran did not report any symptoms of shortness of breath or chest pains until May 2008, when his symptoms resolved with medication. Thus, it is difficult to comprehend that but for the lack of discovery of his clogged arteries in May 2008 (or the failure to perform a cardiac catheterization at that time), the Veteran's heart attack in February 2009 would have been avoided. On the contrary, the most probative evidence of record - the opinion of the VA examiner - shows that in May 2008, VA performed the appropriate tests in response to the Veteran's reported symptomatology and medical history. Those tests revealed a possibility of coronary artery disease which the VA appropriately treated with medication management and recommendations of follow-up care (which the Veteran failed to do). Thus, proximate cause cannot be established. In sum, the Board finds that there is no probative evidence of record that the Las Vegas VA medical center failed to timely diagnose and take steps to properly identify and treat a heart condition which eventually led to the Veteran's heart attack in February 2009. None of the competent and probative evidence of record indicates that VA treatment in May 2008 was not an appropriate course of treatment given the apparent symptomatology and the results of the test studies conducted at the time. Furthermore, the record reflects that the Veteran was not seen for follow-up by the VA cardiologists as recommended after June 2008. Therefore, seeing as the record is devoid of any probative evidence reflecting that an additional disability was proximately caused by either the VA's carelessness, negligence, lack of proper skill, error in judgment, or an event not reasonably foreseeable, and there is no evidence that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, the Board concludes that a preponderance of the evidence is against awarding compensation under the provisions of 38 U.S.C.A. § 1151 for a seizure disorder. ORDER Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of a heart attack, or myocardial infarction is denied. ____________________________________________ STEPHANIE L. CAUCUTT Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs