Citation Nr: 18140637 Decision Date: 10/03/18 Archive Date: 10/03/18 DOCKET NO. 17-54 154 DATE: ORDER Compensation benefits pursuant to 38 U.S.C. § 1151 for residuals of hydrocelectomy, to include deep vein thrombosis (DVT), are denied. FINDINGS OF FACT 1. The Veteran served on active duty from June 1967 to July 1969. 2. The competent, probative evidence of record does not demonstrate that the Veteran’s DVT was the result of treatment furnished by VA in connection with his March 2014 hydrocelectomy. CONCLUSION OF LAW The criteria for entitlement to compensation benefits pursuant to 38 U.S.C. § 1151 for an additional disability due to VA medical treatment in connection with the Veteran’s March 2014 hydrocelectomy 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 FINDINGS AND CONCLUSION The Veteran is currently seeking compensation benefits under 38 U.S.C. § 1151 for residuals of a March 2014 hydrocelectomy. Specifically, he alleges that: (1) The resultant DVT was due to VA carelessness, negligence, judgment error, or fault of the surgical care provided to the Veteran, including the failure to provide a DVT risk assessment; and (2) VA furnished the surgical treatment without first obtaining proper informed consent. Under 38 U.S.C. § 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. For a claimant to be eligible for compensation under 38 U.S.C. § 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. § 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. § 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). 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). 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). 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). 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). Additional Disability Turning to the merits of this appeal, the threshold question is whether the Veteran sustained additional disability following the March 2014 hydrocelectomy. As noted by a February 2015 VA examiner, the Veteran had no history of a hypercoagulable state or DVT episodes prior to this surgery. In the days following the hydrocelectomy, he presented with right leg swelling that was attributed to “assume[d] DVT.” Subsequent diagnostic testing revealed extensive right lower extremity DVT with free-floating thrombus, which was treated with anticoagulants for approximately six months. The Board finds that this incident of DVT qualifies as an additional disability for the purposes of this appeal. Standard of Care Next, the Board must assess whether the Veteran’s DVT was proximately caused by his VA medical treatment, to include the claimed failure to provide reasonable care by conducting a risk assessment. In doing so, the Board finds that VA demonstrated reasonable care with respect to the March 2014 hydrocelectomy. According to the February 2015 examiner and as noted above, the Veteran had no history of a hypercoagulable state or DVT episodes prior to the surgery; as such, there was nothing in his history that would suggest he was at high risk for DVT complications stemming from a simple, minor procedure. Moreover, the examiner indicated that the Veteran had a history of multiple prior surgical procedures and, by comparison, the 2014 hydrocelectomy was a minor procedure. Given that the Veteran did not experience DVTs from the more significant surgeries, “no surgeon in the world would be concerned about, or expect, a DVT complication from a 30 minute, minor [hydrocelectomy] procedure.” Thus, no post-operative risk assessment was, or needed to be, conducted. As to the broader issue of whether the proximate cause of the Veteran’s DVT was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing care, a negative opinion was provided. By way of rationale, the examiner noted that “every person in the world is at risk of a DVT every day they are alive.” Most DVTs are spontaneous or idiopathic in onset. In this case, it was not possible to ascertain whether the hydrocelectomy caused the DVT condition, whether it was caused by some other event, or if it was simply spontaneous and idiopathic in its onset. Further, the Veteran’s procedure was “well-indicated, performed in a routine standard of care fashion, and had no operative complications.” Exemplary follow-up care was offered, at which time the Veteran was doing well. Thus, VA furnished reasonable care in its treatment of the Veteran. In contrast, an October 2015 private opinion concludes that the Veteran’s DVT was the direct result of the surgical procedure and would not have happened otherwise. However, that opinion also reflects that surgery is an accepted cause or inciting event for DVT. A subsequent February 2016 private opinion indicated that an incident of DVT following a hydrocelectomy is a rare occurrence, and it is more likely than not that this outcome would not have been reasonably foreseeable. The February 2015 VA examiner provided an addendum opinion in August 2017, addressing the intervening private opinions. Therein, the examiner agreed with the conclusions of the private physicians in that DVT occurring within 30 days of an operative procedure is considered a complication presumably brought on by the venous stasis involved during surgery and associated postoperative decreased activity. Similarly, a DVT complication following a minor hydrocele operation is rare and not reasonably foreseeable, particularly given the Veteran’s unique medical history. Upon comparison of the above, greater probative value is offered to the February 2015 and August 2017 VA opinions, which are derived from comprehensive reviews of the Veteran’s medical records and critical assessments regarding the nature of the March 2014 procedure, the resultant DVT, 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”). These opinions are also supported by the February 2016 private opinion. In contrast, the October 2015 private opinion asserts only a generic and potential link between the Veteran’s DVT and surgical procedure, without accompanying assessment of additionally inciting factors or the nature of VA’s care in this specific case. As such, the medical evidence does not establish that the March 2014 hydrocelectomy was the proximate cause of the Veteran’s DVT, or that VA failed to exercise reasonable care in this case. In offering this conclusion, the Board does not disregard the Veteran’s assertion of fault on the part of VA, including the failure to properly identify his post-surgical symptoms or counsel against the risk of DVT. 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 DVT. 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, greater probative value is offered to the medical evidence of record in determining whether VA failed to exercise proper care in this case, and whether said failure caused an additional disability. In doing so, the Board finds that the risk of DVT was rare and not reasonably foreseeable, such that the evidence of record reflects that the steps actively taken by VA medical professionals were appropriate per standard medical practice. The Board cannot determine that there was failure to exercise proper care in this case. Informed Consent The Board has also considered whether VA failed to obtain informed consent prior to the Veteran’s hydrocelectomy. Specifically, the Veteran contends that he was not informed of the risk of DVT prior to his surgery. VA regulations define “informed consent” as follows: Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient’s surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. 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. 38 C.F.R. § 17.32(c). The informed consent process must be appropriately documented in the medical record. 38 C.F.R. § 17.32(d). At the outset, the Board observes that the claims file contains an informed consent bearing the Veteran’s signature and dated the day of his surgery. Although this form does not specifically reference the potential for DVT, the risk of blood clots due to sedation is explicitly noted. As to the nature of this form, the February 2015 VA examiner noted that consent forms do not require the listing or counseling for every possible operative complication. Moreover, a DVT complication from this type of surgery would have been considered so unlikely that discussing the risk thereof, or listing DVT as a risk on the form, would not be standard care or considered necessary. Subsequently, the February 2016 private physician noted that he could not find written postoperative discharge instructions which specifically referenced the risk of DVT. However, sequential compression devices were used during the procedure to prevent DVT, and the Veteran was told to “stay down” and limit his activities post-surgery. Thus, the physician concluded that there was likely an issue of interpretation as to the information that was provided to the Veteran, and it was not clear based on written documentation what instructions were given to him regarding mobility and rest. However, in the August 2017 VA addendum, the examiner observed that the informed consent includes the Veteran’s signed acknowledgment that he had the opportunity to read the form, “essentially everything was explained to him,” and he had no further questions. Thus “simply put, the objective records” did not support the Veteran’s contention that he was not counseled as to the risk of blood clots. The Board observes that the signed consent form clearly indicates that the Veteran was notified as to the risk of blood clots and had the opportunity to discuss this risk with his physicians prior to the surgery. There is no indication that he lacked capacity to understand this information or to ask questions as needed. Although an explicit reference to DVT is not included on the consent form, the associated risks between this condition and a hydrocelectomy are so rare that its inclusion on a consent form or any resulting discussion with a patient would be unreasonable and unnecessary as per standard medical practice. As such, the evidence establishes that the signed consent form complies with the requirements of 38 C.F.R. § 17.32(c) and proper informed consent was provided in this case. To that end, the Board does not disregard the lay testimony of the Veteran and his spouse which indicates that he was not counseled about the possible consequences of his surgery. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the record contains a signed consent form which clearly contradicts their recollections. As noted by the February 2016 private physician, it appears that the Veteran was provided with post-surgery instructions to limit the risk of blood clots, although he may not have understood the rationale behind these instructions. Moreover, the parties lack the requisite training and expertise to competently assess the informed consent that would be considered reasonable given the circumstances of this case, including the Veteran’s self-identified risk factors. See Jandreau, 492 F.3d at 1376-77. Thus, greater probative value is afforded to the VA examiner’s opinions regarding the satisfactory and reasonable nature of the signed consent form. Considering the above, 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); 38 C.F.R. §§ 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). JEBBY RASPUTNIS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel