Citation Nr: 1335644 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 07-18 270 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether the Veteran is entitled to compensation under 38 U.S.C.A. § 1151 for residuals of a myocardial infarction caused by surgical treatment and postoperative medical treatment by the Department of Veterans Affairs in March 2004. REPRESENTATION The Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from April 1969 to November 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claims file is now in the jurisdiction of the Oakland, California RO. In March 2010, the Veteran appeared at a hearing before a Veterans Law Judge, who has since retired from the Board. Pursuant to 38 C.F.R. § 20.707, the Veteran was advised in a letter dated in May 2012 of his right to a second Board hearing before another judge and to let VA know whether he wanted a second hearing within thirty days of the date of the letter. Neither the Veteran nor his representative have responded, and therefore, the right to a second hearing is deemed waived. In November 2010, October 2012, and May 2013, the Board remanded the case to the RO for additional development. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT The Veteran does not have additional disability, resulting from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on part of VA in furnishing surgical treatment for placement of a stent in March 2004 for which the Veteran gave his informed consent and in furnishing medical treatment postoperatively until discharge from the hospital in March 2004 and the results of the surgery and medical treatment were reasonably foreseeable. CONCLUSION OF LAW The criteria for VA disability compensation under 38 U.S.C.A. § 1151 due to VA surgical and postoperative medical treatment in March 2004 have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- adjudication VCAA notice by letter, dated in April 2007. The notice included the type of evidence to substantiate the claim under 38 U.S.C.A. § 1151, namely, evidence of additional disability the result of VA surgical or medical treatment due to carelessness, negligence, lack of proper skill, error in judgment, or similar incidence of fault on the part of the VA, or that the additional disability was the result of an event that was not reasonably foreseeable. The Veteran was notified that VA would obtain service treatment records, VA records, and records from other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any non-Federal records on his behalf. The notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). Further VCAA notice is not required. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained service treatment records, VA records, private medical records, and obtained medical opinions in July 2006 and January 2011 (with an addendum dated in January 2011). He was provided a Board hearing in March 2010. The reports of the VA opinions included a review of the Veteran's medical history, including his VA treatment records and private medical records from March 2004. Therefore, the Board concludes that the VA opinions are adequate. 38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the Veterans Law Judge 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, during the Board hearing, the Veteran was assisted at the hearing by an accredited representative from the California Department of Veterans Affairs. That representative questioned the Veteran regarding the medical treatment the Veteran received in March 2004. The representative and the Veterans Law Judge (VLJ) asked questions to ascertain the treatment at VA and the events that subsequently lead to a second hospitalization shortly thereafter at a private facility. The VLJ also asked questions to clarify and establish where the Veteran has received medical treatment for his heart, what he has been told, and the extent of the subsequent treatment. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for a disability due to VA fault under 38 U.S.C.A. § 1151. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), or to the extent the VLJ did not expressly state the elements of the § 1151 claim that were lacking to substantiate it, such error is harmless as both the Veteran and representative also demonstrated actual knowledge of what was needed to prove the claim. As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. Legal Principles As the Veteran's claim under 38 U.S.C.A. § 1151 was received after October 1, 1997, the following statutory and regulatory provisions apply: When a Veteran suffers additional disability as the result of surgical or medical treatment by VA, disability compensation shall be awarded for a qualifying additional disability of a Veteran in the same manner as if such additional disability were service connected. A disability is a qualifying additional disability if the disability was caused by VA treatment, and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical or medical treatment; or the additional disability was not reasonably foreseeable. 38 U.S.C.A. § 1151 (a). Under 38 C.F.R. § 3.361, to establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part, it must be shown that the VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Under 38 C.F.R. § 3.361 (c), a claim based on additional disability due to surgical or medical treatment must meet the causation requirements. To establish causation, the evidence must show that the VA's treatment caused the additional disability. Merely showing that a Veteran received treatment and that the Veteran has an additional disability does not establish cause. Id. VA treatment cannot cause the continuance or natural progress of a disease or injury for which such care was furnished 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). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361. Whether the proximate cause of an additional disability is an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. 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. 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 informed consent. 38 C.F.R. § 3.361(d). Liability under § 1151 may also be established if VA furnished treatment without the informed consent of the Veteran or his representative in compliance with 38 C.F.R. § 17.32. Minor deviations from the 38 C.F.R. § 17.32 requirements that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Evidentiary standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts The evidence establishes that prior to March 2004, the Veteran had hypertension, coronary artery disease, and peripheral vascular disease. He underwent a coronary artery bypass graft in January 2003. On March 18, 2004, the Veteran underwent a cardiac catheterization with stent placement at the Palo Alto VA Medical Center (VAMC). The catherization revealed no changes from a prior catherization in December 2003, which showed two of the three vessels from the coronary artery bypass graft were occluded. Because he had the recent history of chest pain, the surgeons decided to perform angioplasty (stent placement). The surgeons had to perform multiple dilations before inserting a drug-eluting stent was inserted and the result was good flow, minimal residual stenosis, and no dissection, occlusion of the side branches, or complications. The operation report states that the detailed description of the procedure including the risks benefits and potential alternatives risks and benefits of the procedure were explained to the Veteran and that his informed consent was obtained. In addition, a progress note stated that the risks of the procedure for catherization included death, myocardial infarction, cerebral vascular accident, and respiratory depression. The note state the Veteran understood and wanted to undergo the procedure. The Veteran also signed consent forms acknowledging that the nature and purpose of the procedures, possible alternatives, risks involved, and possibility of complications had been fully explained to him. The consent forms covered both the catherization and the opening of artery blockage with a balloon tipped catheter and insertion of a metal tube to keep the artery open. He also acknowledged that there was no guarantee of the outcome. Subsequently thereto, he was treated with Plavix, heparin, and integrelin. He was monitored over night. A nursing inpatient note stated that the Veteran is to report symptoms such as chest pain. The next day, the EKG returned to baseline and the cardiac enzymes did not reveal any abnormalities. The Veteran had no complaints, stable vital signs, and had done well overnight. He was released from the VAMC on March 19, 2004 with instructions including to follow up with his regular VA cardiologist. On March 20, 2004, the Veteran went to the emergency room at Dameron Hospital with complaints of chest pain, but no other symptoms such as shortness of breath. His cardiac enzymes were in the normal range and the EKG showed a normal sinus rhythm without any acute ST-T wave changes. It was noted he had quit smoking three months earlier. He was admitted for observation and the admitting history and physical noted the Veteran was at risk for a myocardial infarction with multiple risk factors. The cardiac enzymes became positive and the EKG showed abnormalities that lead to a diagnosis of myocardial infarction. On March 22, 2004, he underwent a second catherization and stent placement at Dameron Hospital after the myocardial infarction and the catherization demonstrated a complete thrombotic occlusion of the stent placed by VA a few days previously. The second stent also required several dilations and the physicians noted the choice of the stent was a challenge. The Veteran followed up at VA by the end of March 2004 and early April 2004 had no chest pain, shortness of breath, or other congestive heart failure symptoms but continued to feel fatigued and anxious. In October 2004, the Veteran was noted not to have any further chest pain since placement of the second stent in March 2004. He was feeling better but had limited activity due to symptoms related to peripheral vascular disease. His cardiac status was described as stable. In January 2005, as to coronary artery disease, the Veteran was noted to be asymptomatic. In July 2006, VA obtained an expert opinion from a VA physician regarding the care and treatment the Veteran received in March 2004. He noted that initially at Dameron Hospital, the Veteran had normal cardiac enzymes and EKG. It was only after admission for observation did the cardiac enzymes change. The expert stated that there was no current evidence to indicate the Veteran had a myocardial infarction until at least the day after discharge with no evidence of any other complications that could have been noted while the Veteran was at VA. The Veteran most likely had a post procedure spasm which is an expected complication. It was addressed in the notes from the VA nursing notes indicating that the Veteran was to return for symptoms of chest pain. The examiner concluded it is not at least as likely as not that treatment at VA caused the myocardial infarction. While the expert called the timing of the myocardial infarction unfortunate, it was his opinion that VA could not have anticipated any better and conformed to the standard of care in looking at the Veteran's cardiac enzymes and EEGs prior to discharge as well as providing discharge instructions, which the Veteran apparently followed the next day. In December 2009, the Veteran had a pacemaker installed but the operative report does not indicate that the placement of either stent played a role in the necessity for the pacemaker. In January 2011, the pacemaker wires were removed. It was noted the pacemaker had been inserted originally for bradycardia and a mobitz 2 block. The VA pacemaker was upgraded at an unidentified private facility in June 2010, but the Veteran had complained of tenderness and nonhealing lesions since the procedure. It was felt he had developed a pocket infection, which resulted in the removal. A new pacemaker was placed later that month. In January 2011, VA obtained a second opinion regarding the medical treatment provided by VA in March 2004. The expert noted that the stent placement occurred because the Veteran experienced chest pain even though catherization did not reveal any changes from an earlier catherization. After the operation, the Veteran was treated with medications such as Plavix, heparin and integrelin, which the expert described as appropriate. The testing was normal the next day and the Veteran was discharged. Although the expert concluded that the Veteran's treatment was appropriate, the expert noted he lacked some records such as the Veteran's signed informed consent. In January 2013, the VA expert provided an addendum opinion to his January 2011 opinion. He stated he had now reviewed the additional missing materials such as the consent forms. The expert stated he detected no errors on the part of VA providers in the March 2004 stent procedure. Therefore, it was not at least as not (ie at least a 50% or greater probability) that the proximate cause of the acute thrombotic occlusion of the stent placed by VA and resultant acute myocardial infarction was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of the VA in treatment received from March 18-19, 2004. Acute stent thrombosis (30 days after procedure) is a known complication of coronary stents including drug-eluting stents as used in this Veteran. Incidence varies in reports but is in the range of one percent. In other words it is a known complication but a rare one. It was not an event not reasonably foreseeable by a reasonable health care provider. Additional review of the consent forms and notes prior to catherization indicated that the procedures were followed and all proper consents were in place. Notes afterward indicate that the patient was stable, had been fully instructed on post-catherization care, and was ready for discharge. Analysis As noted, the Veteran claims he suffered a myocardial infarction as a result of VA treatment in March 2004. The Veteran alleges that he had the myocardial infarction as a result of VA negligence in the stent placement operation performed on March 18, 2004, and in discharging him only a day after the procedure. When a Veteran suffers additional disability as the result of surgical or medical treatment by VA, disability compensation shall be awarded for a qualifying additional disability. A disability is a qualifying additional disability if the disability was caused by VA treatment, and the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the surgical or medical treatment; or the additional disability was not reasonably foreseeable. 38 U.S.C.A. § 1151(a). As noted earlier, absent a finding of a lack of fault by VA, the mere occurrence of VA treatment and that the Veteran has an additional subsequent disability does not establish a claim under 38 U.S.C.A. § 1151(a). See 38 C.F.R. § 3.361 (c). The Veteran's Lay Evidence As noted, as a lay person, the Veteran is competent to describe symptoms, which he is able to perceive through the use of his senses. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.); see Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses). Further, the Veteran's statements and testimony are admissible and are to be considered as evidence of continuity. Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept in determining whether lay evidence may be considered, in other words, whether the evidence is admissible). The Board thus finds that the Veteran is competent to describe his symptoms and events regarding the March 2004 VA stent placement and thereafter. Although the Veteran is competent to describe symptoms of a myocardial infarction, unless the diagnosis is capable of lay observation, the determination as to the presence or diagnosis of such a disability is medical in nature and competent medical evidence is required to substantiate the claim. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation). The Veteran is not asserting any condition that is capable of lay observation. See Jandreau, 492 F.3d at 1377 (explaining in a footnote, sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); see also Barr, 21 Vet. App at 309 (varicose veins were subject to non-expert diagnosis due to the readily observable defining characteristics of the condition). Furthermore, for the claim before the Board, a diagnosis cannot be made by the Veteran as a lay person based on mere personal observation, that is, perceived by visual observation or by any other of the senses. As demonstrated by this case, a diagnosis depends upon interpretation of symptoms, and clinical and diagnostic tests, such as X-rays, EKGs, and laboratory tests such as cardiac enzymes, which requires medical knowledge. Further, the question of fault on the part of VA or on the question of additional disability not reasonable foreseeable are not simple medical conditions that can be determined by the Veteran based on inferences gained by his own personal knowledge. These conclusions are not perceived through the use of his senses, and cannot be made without specialized knowledge, education, or experience. No factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis or to offer an opinion on the questions of fault on the part of VA or on additional disability not reasonably foreseeable. Therefore, the Veteran's assertion or opinion that he has a given diagnosis of myocardial infarction and the relationship of a diagnosis or symptom to VA treatment is not competent evidence. To this extent his statements and testimony are not admissible as evidence of the diagnosis and causation of a disability. It is the opinion of a layman and not competent medical evidence of a diagnosis by a medical professional. The Veteran's discussion of his symptoms certainly is important, however, the Veteran's opinion as to the cause of his symptoms cannot outweigh the opinion of a medical professional. To sum up the foregoing, the Board will consider the Veteran's testimony as it relates to the onset and continued presence of his symptoms. Such lay evidence is relevant and competent. To the extent that the Veteran is offering his own opinion as to what disability is causing the symptoms, or the relationship of the disability to VA treatment, the Board has disregarded the Veteran's opinions in its analysis. Informed Consent and Reasonable Foreseeability Under 38 C.F.R. § 3.361, to establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part caused additional disability, it must be shown that the VA failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished the surgical or medical treatment without the Veteran's informed consent. After a review of the record, the VA expert in 2011 and 2013 stated that the development of a stent occlusion shortly after placement is a rare but foreseeable risk to the health care provider and it would have been disclosed to the Veteran and the record indicates the surgeon or another VA health provider had a lengthy discussion with the Veteran, including the fact that he might subsequently have a myocardial infarction. The VA experts noted that the Veteran signed the consent form. While the informed consent signed by the Veteran did not specifically refer to occlusion of the stent, there is documentation that the surgeon counseled and educated the Veteran about the risks and benefits of the planned surgery, the alternatives, and even outcomes such as the possibility of a myocardial infarction. Because the Veteran is only claiming residuals of a myocardial infarction as a result of VA treatment and the Veteran was informed about this possibility, the Board finds VA complied with 38 C.F.R. § 17.32. From this the Board concludes the surgical and medical treatments by VA were within the scope of the Veteran's informed consent. In Schertz v. Shinseki, No. 2011-2694, 2013 WL ___, (Vet. App. September 2013), the Court of Appeals for Veteran's Claims recently held that disability compensation awarded under 38 U.S.C.A. § 1151 a reasonable health care provider seeking to obtain informed consent would have disclosed the possibility of a risk, here myocardial infarction, as a reasonably foreseeable risk. The Board finds that the VA caregivers in this instance acted in a manner consistent with that of a reasonable health care provider confronted with the Veteran's individual factors and case would have acted by discussing the possibility of a myocardial infarction as a post-operative risk. The physician in 2011 and 2013 explained that acute stent thrombosis occurs in one percent of all cases and is known but rare complication. The physician further referenced that the literature varied in the rate of occurrence but emphasized it was a known complication. Further, the myocardial infarction risk was not only discussed before the Veteran signed the informed consent form, but was also part of the post-operative care instructions to the patient to return with a symptoms such as chest pain. Neither physician in 2006 and 2011 indicated that the risk of myocardial infarction was something not normally disclosed in the pre-operative informed consent discussion. Finally, the physician in 2011 and 2013, concluded, as he stated, that a myocardial infarction was not an event that was not reasonably foreseeable. Stated another way, the expert concluded that a reasonable health care provider would reasonably foresee a myocardial infarction as a risk that should be, and was discussed with the Veteran to obtain the Veteran's informed consent. The expert based his conclusion on a review of the file and relied upon the facts from that review and the medical literature for the reasons and basis for his conclusion. There is no contrary medical opinion that a myocardial infarction was not a reasonable risk that would have been disclosed before the surgery. The physicians thus took into account all of the medical evidence of record and relied upon and applied medical knowledge to form the opinion. Therefore the Board concludes a myocardial infarction was a reasonably foreseeable event and an ordinary risk for the March 2004 procedures and additional compensation for the residuals of a myocardial infarction under 38 C.F.R. § 1151 and 38 C.F.R. § 3.361 (d) (2) is not warranted. Alleged Carelessness or Negligence by VA On the question of fault on the part of VA regarding the surgery, including the question of whether the Veteran was discharged prematurely from the hospital the next day, to establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part caused additional disability, it must be shown that the VA failed to exercise the degree of care that would be expected of a reasonable health care provider. After a review of the record, two VA physicians did not find any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault as to the surgery, itself, as the VA physicians stated there was a timely and appropriate surgical procedure with pre-operative and post-operative management. From this the Board concludes that the subsequent myocardial infarction after surgery and medical treatment by VA was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part and it is not shown that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. The medical evidence is uncontroverted and is persuasive evidence against the claim of fault on the part of VA in providing the surgical treatment. The Board thus concludes that the second stent, inserted approximately four days later was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part. On the question of whether the Veteran was discharged prematurely by VA, the physicians stated that the postoperative treatment following the first stent placement conformed to the standard of care and the discharge was handled in an appropriate manner. The VA treating medical providers monitored the Veteran and after evaluating the EKG and cardiac enzymes, and verifying his wounds were healing appropriately, the Veteran had progressed in his convalescence to be discharged and there were no signs of heart difficulties or other problems such as signs of infection or breathing difficulties. It appears that the decision was made by several health care professionals. Thus, the experts who have reviewed the case concluded that based on the medical record, the length of stay after surgery was short, but within current standards and the Veteran was in satisfactory condition for discharge and there were no specific warning signs or symptoms of the problems that developed within 48 hours after discharge. From this the Board finds that VA did exercise the degree of care that would be expected of a reasonable health care provider in discharging the Veteran the next day. In the absence of evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in performing the March 2004 catherization or stent placement or in providing the post-operative medical treatment, there is no additional disability due to the fault of VA. There is no evidence that any other current disability or treatment, such as the need for and placement of subsequent pacemaker procedures, was directly caused by the catherization and stent placement or post-operative medical treatment by VA. In addition, as noted, medical experts have determined that the stent placement and post-operative care by VA did not include any acts of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. The Board finds the medical opinions of the 2006 and 2011 physicians persuasive evidence against the claim. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion reached in the opinion). The Veteran has stated that the physicians at Dameron Hospital told him the VA stent was messed up. This does not indicate those physicians told him VA did something wrong but instead is a description of their finding in the operative report that the stent was now occluded. The operative report and any of the other records do not indicate those physicians found the stent was occluded due to an act of negligence by VA in its placement or in the follow-up care before discharge. Therefore, while the Board has determined that the Veteran can competently testify what he recalls from conversations with his physicians, the Board has assigned the statements little probative weight. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). See also Kirwin v. Brown, 8 Vet. App. 148, 153 (1995) (lay person's account of what the physician purportedly said is simply too attenuated and inherently unreliable to constitute medical evidence). The only competent medical evidence is the opinions of the physicians in July 2006 and January 2011 (with the addendum of January 2013). The physicians are qualified by education, training, or experience to diagnosis a medical condition and to offer an opinion on causation. With regard to medical opinions, the probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -03 (2008). The Board finds the unfavorable medical opinions are well reasoned, detailed, provides a rationale that is consistent with other evidence of record, and included reviews of the claims file and the Veteran's symptoms and subsequent treatment. The experts acknowledged the Veteran's evidence of a myocardial infarction within days of the procedure to place the stent. The experts concluded, however, the VA physicans acted appropriately, inserted the stent appropriately, and handled the postoperative period appropriately. Further, the event that followed, a stent occlusion resulting in a myocardial infarction, was rare but foreseeable and covered in the informed consent and discharge instructions. The physicians thus took into account all of the medical evidence of record and relied upon and applied medical knowledge to form the opinion. The physicians set forth an accurate historical history with medical details taken from the Veteran's claims file, which renders it especially probative. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (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). Being based on a complete review of the record, these opinions also take into account the Veteran's own assertions, but the examiners have determined the Veteran's assertions do not establish a relationship between the myocardial infarction and fault by VA in its prior treatment. The Board therefore finds that the opinions of the July 2006 and January 2011 physicians as persuasive evidence against the claim for a disability under 38 U.S.C.A. § 1151. As they applied medical analysis to the significant facts of the case to reach the conclusion expressed in the opinions, the Board also finds the evidence competent and credible and highly probative on the material issues of fact, pertaining to the diagnosis and cause of the myocardial infarction, which opposes, rather than supports, the claim. As there is no competent, independent medical evidence to support the Veteran's assertions regarding fault on the part of VA in providing the surgical treatment and post-operative medical treatment, and the myocardial infarction was a reasonably foreseeable result of the surgery, namely, the type of risk that is foreseeable to a reasonable health care provider and would have disclosed in connection with informed consent, and as the claimed disability of a myocardial infarction was not proximately caused by the VA fault in the March 2004 catherization and stent placement or post-operative medical treatment by VA, the preponderance of the evidence is against the claim under 38 U.S.C.A. § 1151, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a myocardial infarction caused by surgical treatment and postoperative medical treatment by the Department of Veterans Affairs in March 2004 is denied. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs