Citation Nr: 1756470	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  13-35 766	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to compensation pursuant to 38 U.S.C. § 1151 for residuals of abdominal aortic aneurysm repair.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Christopher Murray, Counsel

INTRODUCTION

The Veteran had active military service from June 1963 to March 1966.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Veteran testified before the Board at an April 2016 hearing conducted via videoconference.  A transcript of the hearing is of record.


FINDING OF FACT

The weight of the evidence is against a finding that the Veteran incurred an additional disability as a result of VA medical treatment due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable.


CONCLUSION OF LAW

The criteria for entitlement to compensation under 38 U.S.C. § 1151 for residuals of abdominal aortic aneurysm repair as the result of VA treatment have not been met.  38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. § 3.361 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

When VA receives a complete or substantially complete application for benefits, it 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. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

The Veteran has been provided notice letters throughout the appeal that address all notice elements required.  All pertinent treatment records identified by the Veteran have been obtained, and VA opinions have been obtained where warranted.  There has been no allegation of errors with the duties to notify and/or assist in the instant case.  See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009); see also Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the Veteran fails to raise them before the Board); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.

Analysis

Board decisions must be based on the entire record, with consideration of all the evidence.  38 U.S.C. § 7104.  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122 (2000).  The Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017).

The Veteran contends that he sustained an additional disability, identified primarily as a large hernia with additional associated hernia as a result of a July 2009 surgery for abdominal aortic aneurysm repair.  The Veteran specifically contends that VA: (1) negligently performed a thoracoabdominal incision rather than a midline incision; (2) negligently damaged the intercostal nerve of ribs 10 and 11, resulting in damage to the abdominal muscles; (3) negligently failed to monitor the abdominal wound, resulting in infection; and (4) failed to obtain adequate informed consent.  See June 2013 brief.

In order to warrant compensation under 38 U.S.C. § 1151, the Veteran must demonstrate that the VA treatment in question resulted in an additional disability and that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the surgical treatment, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable.  VAOPGCPREC 40-97; 63 Fed. Reg. 31,263 (1998).

To determine whether the 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 (CWT) 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 involved body part or system separately.  38 C.F.R. § 3.361(b) (2017).

The claimant must establish actual causation.  To meet causation requirements based on additional disability, the evidence must show 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 the additional disability, or that the proximate cause of the additional disability or death was an event that was not reasonably foreseeable. Id.

With regard to the former element, it must be shown that VA's care, treatment, or examination caused the Veteran's additional disability and VA failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished such care, treatment, or examination without the Veteran's informed consent.  38 C.F.R. § 3.361(c), (d) (2017).  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.  38 C.F.R. §§ 3.361(d); 17.32 (2017).

In this case, the record is clear that the Veteran suffered an additional disability that was caused by the July 2009 surgical procedure.  In this regard, a September 2011 VA examination report notes that the Veteran's postoperative course was complicated by wound infection necessitating prolonged hospitalization and extensive wound care.  The VA examiner further noted the Veteran has since developed a significant abdominal wall defect with eventration of the left abdominal wall, and opined that these complications were caused by the July 2009 surgery.  The remaining question, therefore, is whether there was negligence, or similar instance of fault on VA's part, or whether the additional disability was an event not reasonably foreseeable.  38 C.F.R. § 3.361(c), (d).

A December 2011 VA examiner reviewed the claims file and determined that there was no evidence of carelessness, negligence, lack of proper skill or error in judgment on part of VA, or an event not reasonably foreseeable.  The VA examiner specifically stated that there was no deviation of care in the performance of the July 2009 surgery, specifically in the matter of the approach requiring a partial resection of the 10th rib, and that there is no evidence of negligence or delay in treatment of care or issues of substandard care.  The VA examiner also concluded that the Veteran had high risk factors for perioperative complications such as those experienced in the instant case, and that he underwent surgical repair of an abdominal aortic aneurysm of a size and growth rate which presented a substantial, life threatening risk, in which case the benefits substantially outweighed the risk. 

An October 2013 VA examiner also reviewed the Veteran's medical records, and opined that it is less likely than not that VA was negligent in performing a thoracoabdominal incision rather than a midline incision.  In this regard, the VA examiner noted that retroperitoneal approach is a well-accepted approach for aneurysm repair, and this choice of approach does not constitute deviation from standard of care or in any way demonstrate negligence, and that the Veteran's postoperative course was within the expectation of possible complications.  There is no evidence of deviation of care, and the Veteran has multiple comorbidities, not the least of which is ongoing tobacco use, that more likely than not contributed to his postoperative course.

The Veteran has produced no competent medical opinion to suggest that his additional disability is related to carelessness, negligence, lack of proper skill, error in judgment, or other fault related to VA treatment.  The Board acknowledges that the Veteran himself has claimed that she suffers from an additional disability due to VA's negligence or lack of proper care.  However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition, to include the medical determination of negligence or foreseeability.  See Davidson v. Shinseki, 581 F.3d 1313 (2009).  Consequently, the Veteran's lay assertions by themselves cannot constitute evidence upon which to grant the claim for compensation.  Latham v. Brown, 7 Vet. App. 359, 365 (1995).

Finally, the Board acknowledges the Veteran's assertion that the July 2009 consent form he signed was not adequate because it did not explicitly inform him that he could develop a hernia as a result of the abdominal aortic aneurysm repair.  See June 2013 brief.  However, the Veteran was advised that risks included, but were not limited to, bleeding, infections, vascular or nerve injuries requiring open repairs, or even death.  By signing the consent form, the Veteran acknowledged that someone explained to him how the procedure could help and the things that could go wrong, was informed of alternative treatment or procedures, and provided the opportunity to have any questions he may have had answered.  Further, the December 2011 VA examiner has opined that the Veteran's abdominal aortic aneurysm was of a size and growth rate which presented a substantial, life threatening risk.  Therefore, the Board finds that a reasonable person would have proceeded with the surgery even if specific information regarding the possibility of hernia development had been discussed.  See Halcomb v. Shinseki, 23 Vet. App. 234 (2009) (a lack of informed consent is not established based solely on failure of consent documents to list specific disclosed risks); see also McNair v. Shinseki, 25 Vet. App. 98, 103-04 (2011) (the failure to provide information to a patient about a potential adverse effect does not defeat a finding of informed consent if a reasonable person faced with similar circumstances would have proceeded with the treatment).

The record contains no competent medical evidence reflecting that any additional disability was proximately caused by either the VA's carelessness, negligence, lack of proper skill, error in judgment, or an event not reasonably foreseeable.  The findings of the VA examiners are more probative than the Veteran's lay assertions and those submitted on his behalf.  Given these facts, the Board concludes that a preponderance of the evidence is against awarding compensation under the provisions of 38 U.S.C. § 1151 for residuals of abdominal aortic aneurysm repair, and the claim must be denied.  See 38 U.S.C. § 5107 (2012).





ORDER

Compensation pursuant to the provisions of 38 U.S.C. § 1151 for residuals of abdominal aortic aneurysm repair is denied.


____________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs