Citation Nr: 1802717 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-21 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation benefits for residuals of cardiac catheterization surgery, to include a punctured artery, pursuant to 38 U.S.C. § 1151. (Development for the claim of entitlement to payment or reimbursement of unauthorized medical expenses resulting from private hospitalization in September and October 2009 is still ongoing, such that a separate decision will be issued at a later date as appropriate.) REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1962 to June 1965. This matter comes before the Board of Veterans' Appeals (Board) from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The claim was additionally remanded by the Board in March 2015 and September 2016 for further development, which has since been completed. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The competent, probative evidence of record does not demonstrate that the Veteran's hematoma was the result of hospital care or medical or surgical treatment furnished by VA in connection with the Veteran's September 2009 cardiac catheterization surgery. CONCLUSION OF LAW The criteria for entitlement to compensation for residuals of cardiac catheterization surgery, to include a punctured artery, have not been met. 38 U.S.C. §§ 1151, 5103, 5107 (2012); 38 C.F.R. §§ 3.159, 3.361 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159(b) (2017). Here, the Veteran has not raised any issues with the duties to notify or assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "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 a duty to assist argument). As such, the Board will now review the merits of the Veteran's claim. Legal Criteria and Analysis The Veteran is currently seeking entitlement to compensation benefits for residuals of cardiac catheterization surgery performed in September 2009. Specifically, the Veteran has offered two theories of entitlement: (1) That a resultant arterial puncture was the result of VA carelessness, negligence, judgment error, or fault of the VA surgical care provided to the Veteran; and (2) that VA negligently discharged the Veteran while he still presented with internal bleeding. Under 38 U.S.C.A. § 1151, compensation may be paid for a qualifying additional disability or qualifying death from VA treatment or vocational rehabilitation as if the additional disability or death were service connected. In order for a claimant to be eligible for compensation under 38 U.S.C.A. § 1151 due to VA treatment, the evidence must establish that he sustained additional disability and that this additional disability is etiologically linked to the VA treatment by the appropriate standard under 38 U.S.C.A. § 1151. If there is no competent evidence of additional disability or no evidence of a nexus between the hospitalization, medical or surgical treatment, or examination and the additional disability or death of the veteran, the claim for compensation under 38 U.S.C.A. § 1151 must be denied. In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b) (2017). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran's additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1) (2017). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment 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) (2017). An additional disability or death caused by the veteran's failure to follow medical instructions will not be deemed to be caused by hospital care, medical or surgical treatment or examination. 38 C.F.R. § 3.361(c)(3) (2017). 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 either (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 or medical or surgical treatment without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1) (2017). In the instant case, the Board finds that the Veteran sustained additional disability following the September 2009 procedure. To that end, VA treatment records indicate that the Veteran was admitted to the James A. Haley Veterans Hospital in September 2009 with complaints of chest pain. The Veteran thus underwent certain diagnostic testing, to include a heart catheterization. However, the procedure was complicated by a large femoral hematoma in the groin area where the catheter had been placed. An October 2010 VA examiner established a causal nexus between the Veteran's heart catheterization and subsequent hematoma. In doing so, the examiner observed that the Veteran had a heart catheterization in September 2009, during which his artery was punctured, "caus[ing] a hematoma and internal bleeding. The [V]eteran did have significant consequence from that." See VA examination dated October 2010. The classification of the Veteran's hematoma as an "additional disability" was also presupposed by VA examiners in February 2016 and March 2017, who offered opinions regarding the proximate cause of this additional disability. See VA addendum opinions dated February 2016 and March 2017. Thus, the Board finds that the Veteran's hematoma qualifies as the requisite additional disability in this case. Accordingly, the claim may be granted upon a finding that the proximate cause of the Veteran's hematoma was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing care; or that the proximate cause of the hematoma was an event reasonably foreseeable. The Board finds a March 2017 VA addendum opinion to be instructive on this point. At that time, the examiner first opined that it was less likely than not that VA medical professionals failed to timely diagnose and properly treat the hematoma. In this regard, the examiner noted that the Veteran's treatment records note his physicians' awareness of the results of the punctured artery, and utilized diagnostic testing and subspecialty input in order to address the issue at the time the hematoma arose. Next, the examiner opined that it was less likely than not that the Veteran's hematoma was caused by, or the result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of VA personnel. Here the examiner noted that the Veteran's demonstrated hematoma is a problem that can arise due to any surgical procedure of this type. Such consideration would have been discussed with the Veteran at the time of his signed informed consent. Moreover, it is difficult to determine when, and in which individuals, this will occur. It is an unintentional and often unavoidable aspect of this operation. That it occurred reflects the nature of the procedure rather than the carelessness, negligence, lack of skill, or similar incidence of fault by attending VA personnel. Further, the examiner opined that it was less likely than not that the hematoma was caused by or the result of an event that could have been reasonably foreseen by a reasonable healthcare provider. The examiner noted that hematoma is a possibility and its likelihood would have discussed with the Veteran prior to his signed informed consent. As such, the standard of medical care is such that the healthcare team monitors an individual for potential issues and addresses any problems that may arise. The Veteran's treatment records indicate that such monitoring did occur in his case. Finally, the examiner opined that it was less likely than not that the Veteran was still bleeding internally at the time of his discharge, such that prior treatment or testing should have been performed. Instead, the examiner notes that VA treatment records indicate that the Veteran was evaluated on several occasions for his hematoma while he was hospitalized. Said evaluation included imaging studies and serial Hemoglobin/Hematocrit determinations to ascertain that the Veteran was not actively bleeding. Further, comparison of the Veteran's entrance and discharge reports indicate that he did not have continued bleeding following his discharge. Finally, subsequent private treatment records include imaging studies which show no evidence of active bleeding. Taken in combination, the above evidence verifies that the Veteran was not actively bleeding at the time of his discharge from the VA facility. The Board affords significant probative value to the March 2017 opinions, which are derived from a comprehensive review of the Veteran's treatment records and a critical assessment regarding the nature of the September 2009 procedure, the resultant hematoma, and the care provided by VA professionals as compared against common medical standards and practices. Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion"). Further, the Board observes that the March 2017 opinions are corroborated by previous VA opinions dated October 2010 and February 2016. See VA examinations dated October 2010 (concluding that the Veteran's VA procedure was performed properly and that hematoma was a well-known risk thereof; that no incidents of carelessness, negligence, lack of skill, or similar incidence of fault were apparent in the record; and that VA exercised a reasonable degree of care) and February 2016 (concluding that it was less likely than not that the Veteran's hematoma was the result of VA's failure to timely diagnose and treat the condition; was the result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of attending VA personnel; or was reasonably foreseeable by a healthcare provider). No conflicting opinions are of record. Thus, the Board concludes that the Veteran's September 2009 hematoma was not due to any fault on behalf of VA. Instead, hematoma is a known risk associated with heart catheterization. Said risk was discussed with the Veteran prior to his informed consent. The Veteran's development of a hematoma was not due to improper care by VA, and VA medical professionals took reasonable and appropriate steps to diagnose and fully treat the condition prior to the Veteran's discharge. There is no evidence that the Veteran was internally bleeding at the time of his discharge or thereafter. In reaching this conclusion, the Board does not disregard the Veteran's assertion of fault on the part of VA. However, without appropriate medical training and expertise, which he has not demonstrated, the Veteran is not competent to assess the nature of his care or the etiology of his hematoma. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (noting where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). As such, the Board defers to the competent medical evidence of record in determining whether VA failed to exercise proper care during the Veteran's cardiac catheterization surgery. In doing so, the Board finds that it did not. Therefore, the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application, and entitlement to compensation under the provisions of 38 U.S.C. § 1151 for additional disability is not warranted. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to compensation benefits for residuals of cardiac catheterization surgery, to include a punctured artery, pursuant to 38 U.S.C. § 1151 is denied. ____________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs