Citation Nr: 1751427 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 16-32 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for the residuals of an acute left cerebellar infarct that occurred during a cardiac catherization performed at a Department of Veterans Affairs Medical Center (VAMC). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and witness ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from July 1953 to June 1956. This matter comes before the Board of Veterans' Appeals (Board) from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the issue on appeal. In November 2016, the Veteran testified at a hearing before the Board. FINDING OF FACT The residuals of an acute left cerebellar infarct that occurred during a cardiac catheterization was not caused or aggravated by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C.A. § 1151 for the residuals of an acute left cerebellar infarct that occurred during a cardiac catheterization at the VA have not been met. 38 U.S.C.A. § 1151, 5103, 5107 (West 2014); 38 C.F.R. § 3.361 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The law provides that compensation may be paid for a qualifying additional disability or qualifying death, not the result of the Veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when the proximate cause of the disability or death was: (a) carelessness, negligence, lack of proper skill, error in judgment, or other instances of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. 38 U.S.C.A. § 1151. The regulations provide that benefits under 38 U.S.C.A. § 1151 (a), for additional disability or death due to hospital care, medical or surgical treatment, examination, training and rehabilitation services, what is required is actual causation, not the result of continuance or the natural progress of a disease or injury for which the care, treatment, or examination was furnished, unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. The additional disability or death must not have been due to the failure to follow medical instructions. 38 C.F.R. § 3.361. To determine whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the medical treatment upon which the claim is based to his or her condition after such treatment has stopped. 38 C.F.R. § 3.361 (b). To establish that VA treatment caused additional disability, the evidence must show that the medical treatment resulted in the additional disability. Merely showing that a Veteran received treatment and that the Veteran has an additional disability, however, does not establish cause. 38 C.F.R. § 3.361 (c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a Veteran's additional disability, it must be shown that the medical treatment caused the Veteran's additional disability; 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. 38 C.F.R. § 3.361 (d) & (d)(1). Consent may be express (given orally or in writing) or implied under the circumstances specified in 38 C.F.R. § 17.32 (b). 38 C.F.R. § 3.361 (d)(1)(ii). Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim 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 the informed consent procedures of 38 C.F.R. § 17.32 of this chapter. 38 C.F.R. § 3.361 (d)(2). Here, the Veteran contends that the VA was negligent when performing a cardiac catheterization in August 2014 that resulted in the onset of a stroke, or that the stroke was an event that was not reasonably foreseeable. The records reflect that in August 2014, the Veteran underwent an elective cardiac catheterization. At the time, he was 81 years old, and had a history of coronary artery disease and ascending aortic aneurysm. He had a six month history of angina that would last for a minute and was relieved with nitroglycerin and rest. He had undergone a cardiac catheterization two years previously. He also had a history of bradycardia and previous pacemaker placement which had been removed due to infection. During the August 2014 cardiac catheterization, the medical records show that when the catheter was in the left subclavian artery, the Veteran developed dizziness, nausea, vomiting and horizontal nystagmus, and was placed on stoke alert. A brain MRI revealed a left cerebellar stroke. He and his family declined TPA treatment and he was treated with heparin bolus and abciximab bolus. He was noted to be neurologically intact. The Veteran remained hospitalized for a little over a week and was discharged following intact neurological examination and stability. On follow-up examination in October 2014, he was noted to be able to walk and drive, with some dizziness. The Veteran reports that he suffers from imbalance and nausea since the 2014 stroke and has undergone physical therapy for these symptoms. First, while somewhat unclear, the Board affords the Veteran with the benefit of the doubt that an additional disability has been shown in this case, namely, nausea, weakness, and imbalance that began following the stroke. 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 cardiac catheterization or in managing the resulting acute left cerebellar infarct, or stroke. In that regard, in May 2017, the Board sought the opinion of a medical expert on the matter. The opinion provider explained that a stroke as a result of a cardiac catheterization was a known yet rare complication of the procedure. A stroke could occur due to the procedure, which involved the possible dislodging of debris in the aortic arch or subclavian artery with the wires and catheter used. The examiner found that the treatment for the Veteran's stroke was reasonable, in that the Veteran was first offered the standard of care, intravenous thrombolytic therapy, which the Veteran's family was documented in the records to have declined, and then an alternative therapy, heparin and abciximab, which was not the standard of care but was medically shown to be effective and safe for the treatment of a stroke verses no therapy at all (in light of the family's decision). Thus, the physician did not find carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part with regard to the treatment of the Veteran's stroke. Moreover, given the diagnostic nature of the Veteran's cardiac catheterization, it is evident from the physician's opinion that there was no indication of error or other negligence with regard to the cardiac catheterization itself. The physician explained that it was well known that moving wires and catheters through the arteries could move or dislodge debris, as described above. Accordingly, based upon the May 2017 competent and probative medical opinion, and following review of the record, the Board finds that the elements set out in under 38 U.S.C.A. § 1151 have not been met. Next, the Board finds that the Veteran's resultant stroke was not an event that was unforeseeable. The May 2017 reviewing physician stated that given that the Veteran had a history of significant coronary artery disease, a stroke was a rare yet known complication that could have occurred from the cardiac catheterization. The physician specifically concluded that the stroke was a foreseeable event that a healthcare provider would have disclosed in connection with the informed consent procedures. Accordingly, based upon this competent and probative medical opinion, and a review of the claims file, the Board again finds that the elements set out in under 38 U.S.C.A. § 1151, and 38 C.F.R. § 17.32, have not been met. The Board has considered the Veteran's statements that his stroke was not a foreseeable risk of his cardiac catheterization, however, the competent medical opinion of record must be afforded greater probative weight than his statements, as he does not have the requisite medical knowledge to make that determination. The Board is sympathetic to the Veteran's claim, but finds that the weight of the evidence weighs heavily against the claim and therefore, it must be denied. ORDER Compensation under the provisions of 38 U.S.C.A. § 1151 for the residuals of an acute left cerebellar infarct that occurred during an cardiac catheterization performed at a VAMC is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs