Citation Nr: 1511544 Decision Date: 03/18/15 Archive Date: 03/27/15 DOCKET NO. 13-13 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to compensation benefits under 38 U.S.C.A. § 1151 for a heart condition, claimed as additional disability due to having blood drawn at a Department of Veterans Affairs medical clinic in November 2010. 2. Entitlement to compensation benefits under 38 U.S.C.A. § 1151 for seizures, claimed as additional disability due to having blood drawn at a Department of Veterans Affairs medical clinic in November 2010. 3. Entitlement to compensation benefits under 38 U.S.C.A. § 1151 for vasovagal syndrome, claimed as additional disability due to having blood drawn at a Department of Veterans Affairs medical clinic in November 2010. 4. Entitlement to compensation benefits under 38 U.S.C.A. § 1151 for exhaustion, claimed as additional disability due to having blood drawn at a Department of Veterans Affairs medical clinic in November 2010. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1967 to October 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2013 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in October 2013. A transcript of the hearing has been associated with the electronic record. Following the issuance of the March 2013 supplemental statement of the case, the Veteran submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2014). The Virtual VA paperless claims processing system contains the transcript from the Veteran's October 2013 Travel Board hearing. The Virtual VA paperless claims processing system also contains VA treatment records from the Norfolk CBOC dated from November 2010 to March 2013. Other documents on the Virtual VA paperless claims processing system are either duplicative of the evidence of record or not pertinent to the present appeal. The Veterans Benefits Management System (VBMS) does not contain any documents at this time. FINDING OF FACT There is no evidence of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment on November 8, 2010, nor is any current disability due to an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a heart condition as the result of VA treatment have not been met. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. 3.361 (2014). 2. The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for seizures as the result of VA treatment have not been met. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. 3.361 (2014). 3. The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for vasovagal syndrome as the result of VA treatment have not been met. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. 3.361 (2014). 4. The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for exhaustion as the result of VA treatment have not been met. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. 3.361 (2014). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 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 (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 requirements apply to all five elements of a service connection claim. The five elements are: (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 VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in November 2012. This letter notified the Veteran of the evidence needed to substantiate the 1151 claims, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claims. Duty to Assist VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service treatment records, and lay statements have been associated with the record. Additionally, during the appeal period, the RO obtained a VA medical opinion in December 2012. The Board has carefully reviewed the VA medical opinion and finds that the VA medical opinion provided was thorough and fully adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, with respect to the Veteran's claims, there is no additional evidence which needs to be obtained. As part of the duty to assist, the Veteran was afforded a Board hearing pursuant to his request. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge of the Board or local Decision Review Officer (DRO) at the RO chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issue, and (2) suggesting the submission of evidence that may have been overlooked and that may be advantageous to the claimant's position. Here, during the Board hearing the undersigned effectively outlined the issue on appeal and suggested that any evidence that may be advantageous to the Veteran's position be submitted. To the extent this was not done, the Veteran and his representative at the hearing demonstrated sufficient actual knowledge of what was required. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2); they have not identified any prejudice in the conduct of the hearing. As the Veteran has not identified any additional evidence pertinent to the claims 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. III. Legal Criteria In pertinent part, section 1151 provides for compensation for qualifying additional disability in the same manner as if such additional disability were service- connected. A qualifying additional disability is one in which the disability was not the result of the Veteran's willful misconduct; and, the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran; and, the proximate cause of the disability was the result of 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; or was the result of an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2014). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the Veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's informed consent. In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361(b) (2014). It is also necessary to show that additional disability actually resulted from such disease, or that an injury or an aggravation of an existing disease or injury was suffered as a result of hospitalization or medical treatment and is not merely coincidental therewith. The mere fact of aggravation, alone, will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(1), (2). Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32 (2014). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner must explain in a language understandable to the patient the nature of a proposed procedure of treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. 38 C.F.R. § 17.32. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. The informed consent process must be appropriately documented in the medical record. 38 C.F.R. § 17.32(d). Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361(d)(1). IV. Factual Background and Analysis The Veteran seeks compensation under 38 U.S.C.A. § 1151 for additional disability from VA treatment at the Norfolk CBOC on November 8, 2010. Specifically, he asserted that during a routine examination on November 8, 2010, a nurse attempted to draw his blood. He described the nurse leaving the tourniquet on his left arm for at least five minutes while she wiggled the needle into his arm looking for a vein to draw blood from. He explained that she then moved the tourniquet to his right arm, and at that time, he passed out and was sent to the emergency room. The hospital found that the Veteran had a vasovagal syncope and a seizure. The Veteran claimed that after extensive work up, he was diagnosed with vasovagal syndrome, for which he now takes medication to prevent. He explained that since this time, he has had seizures, heart trouble, and marked fatigue, and is unable to do tasks that he used to perform without difficulty. The Veteran further contended that he had never had a seizure before this incident. He asserted that in a follow up appointment, Dr. R.N. told him that "the nurse" brought this seizure on and that she was being "retrained." VA treatment records from the Norfolk CBOC dated November 8, 2010, confirmed that the Veteran experienced a seizure-like incident after having blood work taken as a new patient. In a treatment record from the hospital where the Veteran was sent after passing out during the blood work, it was noted that the Veteran had received treatment at the VA clinic that day as a new patient. It was noted that the nurse had a hard time drawing blood, and he became diaphoretic and lost consciousness, followed by a seizure. The impression was vasovagal syncope and seizure. In a private treatment record dated in January 2011, it was noted that the Veteran presented to the emergency department with complaints of an episode of feeling tired, some paresthesias to both hands, and a feeling of increased blood pressure with a headache. He reported a convulsive episode after his blood was drawn in November. He indicated that he had felt fatigued and weak since that time. He denied any prior epileptic or convulsive activity before that time. The impression was hypertensive episode and fatigue with cephalgia. The physician noted "suspect etiology related to his blood pressure." In a private treatment record dated in March 2011, Dr. H.A. diagnosed the Veteran with a convulsive syncope. He noted that the Veteran had never had a seizure in his life, and did not have risk factors for seizures; however, he had a seizure that was witnessed during blood being drawn in the VA clinic in Norfolk following syncope. Dr. H.A. indicated that this episode was consistent with convulsive syncope, which was a vasovagal syncopal episode with a provoked seizure. He noted that this did not increase his risk factors for having seizures in the future and was not related to epilepsy. Dr. H.A. found that this episode was most likely a result of the Veteran's labile blood pressure at the time. In a buddy statement dated in November 2012, the Veteran's employer indicated that the Veteran has had a medical condition for the last two years that relates to his heart rate and blood pressure. He indicated that this medical condition causes the Veteran to miss work and hinders his ability to perform all of his duties. In a submission dated in November 2012, the Veteran's dentist, S.M., indicated that he performed an extraction of the Veteran's tooth in October 2011. S.M. explained that after the tooth was extracted, the Veteran had a seizure-like episode. He further noted that the Veteran had never had any prior episodes of seizure activity in his office, and he had always tolerated procedures very well with no complications. In a submission dated in November 2012, Dr. M.Z. indicated that he had been the Veteran's physician since 1995. He explained that prior to 2010; the Veteran had no history of seizure, heart problems, or hypertension. Dr. M.Z. further noted that overall; the Veteran's medical history prior to 2010 was unremarkable. In December 2012, the RO obtained a VA medical opinion. The examiner noted that in November 2010, while the Veteran was having blood drawn at a VA clinic, he suffered from a syncopal/vasovagal episode, and was transferred by ambulance to a regional hospital facility. The examiner indicated that after a review of all available medical records, it appeared that the Veteran did have a syncopal/vasovagal episode during a blood draw in November 2010. He indicated that it also appeared that the Veteran had seizure-like activity. The examiner noted that the Veteran had numerous, subsequent workups from various physicians. The examiner explained that these episodes occur in the general population patient on occasion. He indicated that he could not find that the Veteran's heart condition, seizure, vasovagal syndrome, and exhaustion were due to the specific blood draw on November 8, 2010 at the VA clinic, as this was not caused by any carelessness, negligence, lack of proper skill, error in judgment, or other similar instance of fault on the part of the VA in providing hospital care, medical or surgical treatment, or examination to the Veteran. The examiner explained that this was an event that was reasonably foreseeable, because it does occur in the general population. He noted that there were times when people experienced vasovagal episodes during blood draws, and this was not uncommon. The examiner indicated that unfortunately, this Veteran had a number of issues that also occurred simultaneously, and has had thorough evaluations for these issues. The examiner concluded that based on a review of all available medical information, he could not find any carelessness, negligence, lack of proper skill, error in judgment, or other similar instance of fault that occurred during that timeframe even though the Veteran did suffer from an unfortunate episode during that blood draw, with a number of complications. The examiner noted that the Veteran had indicated that he was told by his provider that the nurse in question had to be "retrained." The examiner indicated that this was "conjecture." The examiner provided an addendum to his opinion in January 2013. This addendum opinion again reiterated that the examiner could not find that the Veteran's heart condition, seizure, vasovagal syndrome, and exhaustion were due to the specific blood draw on November 8, 2010 at the VA clinic, as this was not caused by any carelessness, negligence, lack of proper skill, error in judgment, or other similar instance of fault on the part of the VA in providing hospital care, medical or surgical treatment, or examination to the Veteran. In a statement dated in March 2013, Dr. R.N., a staff physician at the Norfolk CBOC noted that the Veteran described a nurse leaving a tourniquet on his left arm for at least five minutes while she wiggled the needle in his arm looking for a vein to draw blood from. He noted that the Veteran then indicated that the nurse moved the tourniquet to the right arm, and the Veteran passed out and was sent to the emergency room. Dr. R.N. noted that the diagnosis after extensive workup was vasovagal syndrome, for which the Veteran now took medication to prevent. He noted that since that time, the Veteran has had marked fatigue and was unable to do tasks that he used to perform without difficulty. Dr. R.N. opined that it was at least as likely as not that the incident with the blood draw could have precipitated the vasovagal syndrome and the Veteran's continued difficulties. In a statement dated in November 2013, Dr. K.A. indicated that the Veteran had severe situational cardioinhibitory (vasovagal) syncope. He explained that the Veteran has witnessed decrease in blood pressure and heart rate with syncope associated with blood draws and IV insertions. Dr. K.A. noted that the Veteran had one episode in 2011 with a blood draw. Dr. K.A. found that it was more likely than not that the Veteran had vasovagal syncope followed by jerking movements as a result of a severe cardioinhibitory response to unpleasant events such as blood draws and needle insertion. In the Veteran's Travel Board hearing dated in October 2013, he indicated that all of his problems began with the blood draw in 2010. He further noted that he had never had a problem with having his blood drawn prior to this incident. First, the Board notes that an additional disability has been shown in this case, namely, vasovagal syndrome/syncope. However, the additional disability does not meet the criteria set forth under 38 U.S.C.A. § 1151, and thus the appeal must be denied. For one, there is no indication that the VA failed to exercise the degree of care that would be expected of a reasonable health care provider when preforming the Veteran's blood work on November 8, 2010. The probative December 2012 VA medical opinion found no indication of carelessness, negligence, lack of proper skill or error in judgment or other instance of fault on the part of the VA as related to the blood work on November 8, 2010. While the Veteran contends that the procedures were negligent, the competent medical evidence and opinions of record weigh heavily against such a finding. Moreover, VA treatment records dated on November 8, 2010 revealed that this procedure was performed with the Veteran's informed consent and the Veteran has not asserted otherwise. Thus, although there is an identified additional disability, because there is no indication that the November 2008 VA procedure resulted in carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing that treatment, the claim cannot prevail. In that regard, the Board finds that although the opinions from Dr. R.N. and Dr. K.A. relate that the Veteran's vasovagal syndrome/syncope resulted from the blood draw in November 2010, these opinions do not support the necessary element of a finding of negligence on the part of the VA. Therefore, the Board finds that the opinions from Dr. R.N. and Dr. K.A. do not support the Veteran's claim as they merely shows a relationship between the Veteran's vasovagal syndrome/syncope and the VA procedures, but do not establish fault on the part of the VA. Finally, as explained thoroughly by the December 2012 VA examiner, the Veteran's vasovagal syndrome/syncope was an event that was reasonably foreseeable while having blood drawn. As the examiner explained, this was an event that was reasonably foreseeable, because it does happen in the general population. He explained that there were times when people experienced vasovagal episodes during blood draws, and this was not uncommon. The Board is sympathetic to the Veteran's condition. The Board finds, however, that the preponderance of the probative evidence of record supports that the additional vasovagal syncope disability and resulting complications was a reasonably foreseeable consequence of his November 2010 blood work. In fact, it is not uncommon for people to experience vasovagal episodes during blood work, and this was not caused by any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA. As such, the criteria for service connection under 38 U.S.C.A. § 1151 have not been met. Accordingly, as the preponderance of the evidence is against the claim for benefits pursuant to 38 U.S.C.A. § 1151, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Compensation under the provisions of 38 U.S.C.A. § 1151 for a heart condition, related to the blood work performed at a Department of Veterans Affairs Medical Clinic must be denied. Compensation under the provisions of 38 U.S.C.A. § 1151 for seizures, related to the blood work performed at a Department of Veterans Affairs Medical Clinic must be denied. Compensation under the provisions of 38 U.S.C.A. § 1151 for vasovagal syndrome, related to the blood work performed at a Department of Veterans Affairs Medical Clinic must be denied. Compensation under the provisions of 38 U.S.C.A. § 1151 for exhaustion, related to the blood work performed at a Department of Veterans Affairs Medical Clinic must be denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs