Citation Nr: 1335010 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-34 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to payment of compensation benefits under 38 U.S.C.A. § 1151 for additional cardiac disability resulting from July 2005 VA treatment for coronary artery occlusions. REPRESENTATION Appellant represented by: Jeffrey Bunten, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from February 1952 to February 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the claim. The Veteran testified at a personal hearing at the RO before a Decision Review Officer in July 2012. A transcript of the hearing is of record. In March 2013, the Veteran provided testimony at a personal hearing before the undersigned Veterans Law Judge (VLJ) at the RO in June 2009. A transcript of the hearing is of record. In May 2013, the Board requested an independent medical expert opinion regarding the Veteran's claim. The requested opinion was subsequently received that same month. The Veteran was provided with a copy of this opinion, and was given 60 days in which to send any additional evidence or argument regarding the case pursuant to 38 C.F.R. § 20.903. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran had well-established coronary artery disease prior to the July 22, 2005 medical treatment. 2. The Veteran underwent a cardiac catheterization at a VA medical facility on July 22, 2005 and was treated for complaints of chest pain after the procedure. 3. The Veteran sustained a myocardial infarction associated with a coronary dissection and this is a known complication of coronary stenting while receiving treatment at or above the standard of care. 4. In July and August 2005, the Veteran underwent a successful stenting of the left anterior descending artery prior to surgery for his carotid artery stenosis; and subsequent cardiac studies show no significant effect on overall left ventricular pumping function. 5. No additional disability suffered as a result of the June 22, 2005 cardiac catheterization, including the myocardial infarction, was the result of carelessness, negligence, lack of proper skill, error in judgment, lack of appropriate supervision, or a similar instance of fault on the part of the VA treatment providers. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151 for a lumbar spine disability resulting from VA surgical treatment in July 2005 are not met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.361 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in May 2008. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate his claim and the relative duties of VA and the claimant to obtain evidence. The letter also provided the specific notice of how to substantiate a 38 U.S.C.A. § 1151 claim. The letter did not provide specific notice regarding the assignment of disability ratings and effective dates for all grants of service connection as required by Dingess v. Nicholson, 19 Vet. App. 473 (2006); however, such a defect is harmless error because the claim is denied rendering moot the issues of an initial disability rating and effective date for a grant of service connection. In response to the May 2008 letter, the Veteran submitted private treatment records to support his claim and indicated at what VA facilities he had been treated. With respect to the aforementioned Board hearing, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ noted the current appellate issue at the beginning of the hearing, and asked questions to clarify the Veteran's contentions and treatment history. The Veteran, in turn, provided testimony in support his claim that he suffered additional disability as a result of the July 2005 cardiac catheterization. Finally, the Veteran continued to submit private treatment records and identify VA facilities where he was being treated. This shows that the Veteran was made aware at the hearing of additional evidence that he could submit to substantiate his claim of service connection. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions, including an independent medical opinion, to address whether the criteria are met for entitlement to compensation for additional disability pursuant 38 U.S.C.A. § 1151. Finally, the Veteran was afforded the Veteran the opportunity to give testimony before a DRO at the RO, and before the Board. The Veteran provided the RO with all treating providers and all known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. In June 2013, the Board received additional medical evidence without a waiver of review by the Agency of Original Jurisdiction. This evidence was received in response to the Board's June 2013 correspondence notifying the Veteran that he had 60 days to review the independent medical opinion and to submit any additional evidence. The Veteran did not, however, return the "Medical Opinion Response Form" which requested a response as to whether or not he waived RO review of such evidence in the first instance; and, he did not specifically provide waiver of review by the AOJ. Nevertheless, the lack of a waiver does not prejudice the Veteran in this case because the newly submitted evidence is not relevant to the issue on appeal and does not change the outcome of this case. The evidence consists of duplicative medical records, records noting treatment for other conditions, and/or treatment of the Veteran's ongoing coronary artery disease. The records pertaining to the Veteran's coronary artery disease are cumulative of evidence already in the claims file, noting the same problems with regard to his coronary artery disease, including an ongoing need for periodic stenting of occluded arteries. (See private and VA medical records dating back to 1999 showing occluded arteries, chest pain, and stenting procedures). The evidence does not show that the Veteran has any additional disability which has not already been shown in prior records that have already been reviewed by the RO. Because the records do not contain any additional information pertinent to the claim, a waiver of review by the Agency of Original Jurisdiction is not necessary. Moreover, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated on other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file have been reviewed, and all relevant records are either duplicative of the evidence in the paper claims file or are separately identified and summarized below. II. 38 U.S.C.A. § 1151 claims Under the current provisions of 38 U.S.C.A. § 1151 (West 2002) compensation 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- (1) 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. From the plain language of the statute, it is clear that to establish entitlement to Section 1151 benefits, these 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. The regulation implementing 38 U.S. C.A. § 1151, 38 C.F.R. § 3.361, in pertinent part also provides that: 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). 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. 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. 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, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); 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, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. To determine whether there was informed consent, VA will consider 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. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d). In order to give informed consent, the patient must have decision-making capacity and be able to communicate decisions concerning health care. 38 C.F.R. § 17.32(d). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether compensation pursuant to 38 U.S.C.A. § 1151 is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that compensation is warranted under the provisions of 38 U.S.C.A. § 1151 based on his contentions that he has additional disability resulting from a July 2005 cardiac catheterization, to include non-ST element elevation myocardial infarction, as a result of negligence, carelessness, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination. Lay assertions may serve to support a claim by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's claim involves complex medical issues, which are generally not subject to lay observation. In short, competent medical evidence is necessary to resolve this claim. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion as to causation or fault. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The Veteran contends that he sustained additional damage to his heart as a result of negligent VA care in July 2005. More specifically, the Veteran has asserted, in several statements and in hearing testimony, that while VA was performing a cardiac catheterization on July 22, 2005, he began to feel severe chest pain, which did not subside at the end of the procedure. He was treated in the ICU for his ongoing chest pain and was released a few days later when the chest pain subsided. The Veteran maintains that he had a heart attack during the cardiac catheterization when a piece of plaque broke loose during the procedure. The Veteran believes that there was a lack of proper care, and as a result, he has suffered additional heart disability. He asserts that his heart health has deteriorated since the June 2005 cardiac catheterization. The claims file shows that the Veteran was treated privately prior to the 2005 catheterization at the VAMC. Private treatment records dating back to 1999 indicate that the Veteran had a long history of coronary artery disease and hypertension before 2005. These records show that in June 1999, an effort at angioplasty and stent placement to the distal right coronary artery was attempted. A 90 percent mid-right coronary artery stenosis was successfully stented; however, the distal lesion at the origin of the posterior descending branch could not be traversed and the Veteran has received medical treatment since that time. The Veteran received another stent in his coronary artery in 2001 based on results from a February 2001 cardiac catheterization. Notably, the Veteran underwent an Adenosine Stress Test in February 2001, and at the very end at 6 minutes he was becoming dyspneic and was having heaviness in the right side of his chest. It quickly subsided with the discontinuation of the Adenosine. The Veteran indicated that it was the same type of discomfort he had with his angioplasty in 1999. With regard to the Veteran's assertions, the VA treatment records show that the Veteran presented to the VAMC on July 19, 2005 with complaints of angina at rest and on exertion and shortness of breath on walking one flight of stairs. The record shows that a carotid ultrasound on January 13, 2005 revealed 80 percent stenosis of the right internal carotid and 50-60 percent stenosis of the left internal carotid. VA outpatient treatment records from July 22, 2005 show that the Veteran had elevated blood pressure greater than 200/100 during the cardiac catheterization with chest pain and nausea/vomiting. The Veteran was given a nitroglycerin IV drip until oral therapy could take effect and the medical staff suggested aggressive blood pressure management. The Veteran was admitted to ICU and EKG revealed sinus bradycardia, no other ischemic changes. The Veteran was given a nitroglycerin drip. The VA cardiology fellow and cardiology staff physician who performed the July 2005 cardiac catheterization opined that the Veteran's chest pain may have been due to the hypertension, the adenosine infusion, or both. The staff physician also indicated that the chest pain post cardiac cath could either be related to adenosine administration or intra-procedure micro vessel emboli. Records beginning on July 24, 2005 refer to the July 22, 2005 event as a peri-procedure NSTEMI, or non-ST elevated myocardial infarction. In June 2009, a VA examiner reviewed the Veteran's "chart." It is not clear whether the Veteran's claims file was reviewed, or whether the review was limited to only the Veteran's VA medical records. That notwithstanding, the examiner noted that the Veteran had chest pain after the cardiac cath done in July 2005. The examiner also noted that the Veteran has had known complications, but did not indicate specifically as to what complications he was referring. The examiner then stated, "It is not an unexpected problem, but he does see the chances are there to have chest pain." The examiner concluded that the Veteran was treated adequately, with a proper consultation and proper hospitalization. The examiner did not see any evidence of carelessness, negligence, lack of proper skills or judgment in the care. The examiner concluded that the Veteran was given excellent care. The Veteran presented testimony at a personal hearing in March 2013. The Veteran attempted to recount the events that took place between July and November 2005, but he had difficulty recalling and describing the particular medical details in question. Some of his statements are inconsistent with the record as summarized above. Significantly, VA mental health records in 2012 show that the Veteran is diagnosed with a cognitive deficit disorder, and then was subsequently diagnosed with dementia. Given these findings, the accuracy of his reported history during his testimony is in question. In light of the nature and the complexity of the issues raised, the Board concluded that a independent medical opinion (IME) was required in this case. After detailing the facts of this case, the Board requested that the physician provide an opinion with complete rationale, addressing the following questions: 1. Did the Veteran incur an additional heart disability, or additional damage to his heart, as a result of the July 22, 2005 cardiac catheterization with subsequent high blood pressure and severe chest pain? In answering this question, please compare the Veteran's heart condition immediately prior to the July 22, 2005 cardiac catheterization to his heart condition after the post-treatment was terminated and his chest pain subsided. If additional disability was incurred, please indicate all additional disabilities incurred as a result of the events that took place at the VAMC between July 19, 2005 and July 25, 2005. Please explain the difference, if any, between a heart attack/myocardial infarction, and the Veteran's documented July 2005 "non-ST elevated myocardial infarction" and whether that constitutes additional disability. Please also address the Veteran's contention that a piece of plaque was dislodged during the procedure and caused a heart attack. 2. If the Veteran incurred an additional disability as a result of the events surrounding the July 2005 cardiac catheterization, please opine as to whether any additional disability was due to medical treatment; and, if so, whether any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused the additional disability. Please also opine as to whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider. 3. If the Veteran incurred an additional disability as a result of the events surrounding the July 2005 cardiac catheterization, was the proximate cause of the Veteran's additional disability an event not reasonably foreseeable; or, would a reasonable health care provider have considered the event to be an ordinary risk of the treatment provided? In answering this question, please address whether the risk of the July 2005 event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures? Why, or why not? In answering this question, please indicate whether there is a correlation between the Veteran's chest pain during cardiac procedures and the administration of adenosine; and, whether this has any relationship to the July 2005 event. The physician was instructed to review private records from February 2001 and April 2001; and, VA records from July 2005 in conjunction with any opinion provided. In response to the Board's questions, an IME opinion was completed by a physician in May 2013, and concluded, in essence, that the Veteran suffered a myocardial infarction in the setting of the initial coronary stenting in July 2005; however, the Veteran did not incur additional disability above and beyond what is reasonable and expected care for coronary artery disease at a cardiac catheterization procedure with percutaneous coronary stenting. The doctor concluded that the Veteran sustained a known complication of coronary stenting while receiving treatment at or above the standard of care. To support his opinion, the physician cited to several medical references, noting that the Veteran's complication (sustaining a myocardial infarction in the setting of the initial coronary stenting in July 2005) is noted in 15 percent of coronary stenting procedures and would have been noted by the cardiologist on a pre-procedural consent. According to the medical references, coronary dissections have been noted in up to 50 percent of percutaneous coronary balloon angioplasties. The doctor also noted that since the time of the initial incident, the Veteran had undergone subsequent cardiac stress tests and echocardiograms which showed overall normal left ventricular pumping function. There is no medical evidence to contradict the findings of the IME report, which are based on sound medical principles and which substantially answer all the questions posed in the Board's request. The physician confirmed that the Veteran suffered additional disability (myocardial infarction); confirmed that the condition occurred during medical treatment; and, found 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 treatment. Moreover, and most importantly, the physician found that the Veteran's additional disability as a result of the July 2005 cardiac catheterization was an event reasonably foreseeable as it is an ordinary risk of the treatment provided. The opinion cited the medical sources for his opinion and the figures provided. Finally, the examiner noted that subsequent medical records showed no significant effect (normal) left ventricular pumping function, and left ventricular pumping function was a major indicator of overall cardiac prognosis. Further, this opinion is consistent with the opinion proffered in the June 2009 examination report, and there is no competent opinion to the contrary. The May 2013 IME reflects that the symptomatology described by the Veteran was a reasonably foreseeable consequence of such cardiac catheterization procedures and would be noted on the consent form. Additionally, the IME opinion points out that even though the Veteran did suffer a myocardial infarction during the procedure, subsequent testing shows that it did not have a permanent effect on the Veteran's overall cardiac condition. Although the Veteran has repeatedly asserted that his overall health declined after that procedure, the record shows that his cardiac health did not significantly decline, particularly given the evidence showing a long history coronary artery disease with surgical intervention dating back to at least 1999. With regard to informed consent, the record does not specifically contain the actual consent form signed by the Veteran; however, the record shows that the Veteran was aware of the procedure he was about to undergo, and that a consent form for the procedure had been signed prior to the procedure. A VAMC July 22, 2005 nurses notation from 7:59 a.m. indicates that "pre and post-cath teaching done with patient." The note also indicates that the Veteran had a good level of understanding with regard to the cardiac catheterization procedure, and verbally acknowledged such. The Veteran was provided one-to-one counseling, and all of the duties on the checklist prior to the procedure were accomplished. The note indicates that the Veteran was conscious and able to state his full name, social security number and report to the nurse what procedure was being done. In addition, the nurse noted that the Veteran's name and social security number were checked against (1) the patient's armband and VA ID card; (2) the schedule of procedures and site of procedure; and (3) the consent form. These records show that the VA health care providers involved substantially complied with the requirements of 38 C.F.R. § 17.32. Notwithstanding the lack of the actual consent form in the file, the May 2013 physician indicated that the proximate cause of a Veteran's additional disability was an event reasonably foreseeable based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). The event was one that a reasonable health care provider would have considered to be an ordinary risk of the treatment provided. Id. In determining that the event was reasonably foreseeable, the May 2013 physician specifically noted that 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. Thus, the physician's opinion satisfied the criteria for finding that the event was reasonably foreseeable despite the lack of accessibility to the signed consent form. Furthermore, the Veteran has never alleged that he was unaware of the risks involved with a cardiac catheterization procedure or that he did not sign the consent form. In that regard, there is evidence confirming that the Veteran had decision-making capacity and that he was able to communicate decisions concerning his health care at the time of the procedure. There is no credible evidence to suggest that the treatment the Veteran received was performed without the Veteran's informed consent. Finally, the records also show that the Veteran was well enough to undergo a right carotid endarterectomy surgery under general anesthesia in November 2005, just four months after the July 2005 event. This is consistent with the May 2013 physician's opinion that the Veteran's subsequent health was not further compromised by the July 2005 myocardial infarction because the record reflects that the condition prior to the July 2005 event is, in essence, the same condition from which the Veteran currently suffers. Although the Veteran sincerely believes that his condition permanently worsened after July 2005, the competent evidence of record does not support the Veteran's beliefs for all the reasons stated above. In conclusion, the competent and probative evidence establishes that the Veteran does not have additional disability as a result of the July 2005 cardiovascular surgical procedures that is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, nor were the claimed disabilities unforeseeable, given the Veteran's known diagnoses of coronary artery disease for which VA treatment was rendered. 38 U.S.C.A. § 1151 (West 2002). For these reasons, the preponderance of the evidence is against the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 for additional cardiac disability resulting from July 2005 VA treatment for coronary artery occlusions. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal with respect to this claim must be denied. ORDER Payment of compensation benefits under 38 U.S.C.A. § 1151 for additional cardiac disability resulting from July 2005 VA treatment for coronary artery occlusions is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs