Citation Nr: 18142315 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 18-16 457 DATE: October 15, 2018 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for left pleural effusion as an additional disability incurred from heart surgery performed at a VA facility is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s left pleural effusion is an additional disability caused by surgical error during the January 2015 VA heart surgery. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for compensation under 38 U.S.C. § 1151 for left pleural effusion as an additional disability incurred from heart surgery performed at a VA facility are met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1957 to April 1961. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran appointed Disabled American Veterans as his representative. The Board recognizes this change in representation. Compensation under 38 U.S.C. § 1151 for left pleural effusion as an additional disability incurred from heart surgery performed at a VA facility In this appeal, the Veteran contends he developed an additional disability, a left pleural effusion, claimed as loss of left lung, from January 27, 2015 open heart surgery performed at a VA medical facility. He asserts that the additional disability was caused by VA fault in performing such surgery. The Board finds the evidence to be at least evenly balanced regarding these issues. As explained below, the evidence is in a state of relative equipoise and the Board will grant the claim. As relevant, 38 U.S.C. § 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 to the Veteran; and, the proximate cause of the disability is 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. Id. Thus, the evidence must first establish an additional disability which was caused by hospital care, or by medical or surgical treatment, rendered by the Department of Veterans Affairs. In determining whether a Veteran has additional disability, VA compares his condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to his condition after such care or treatment. 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). Next, the evidence must 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 the Veteran's additional disability. 38 C.F.R. § 3.361(d). This element is satisfied by showing that in furnishing hospital care or medical or surgical treatment causing the Veteran's additional disability VA failed to either: (i) exercise the degree of care that would be expected of a reasonable health care provider; or (ii) furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Turning to the evidence, January 26, 2015 VA cardiothoracic surgery clinic records showed that the Veteran was recommended for Aortic Valve Replacement (AVR) and MAZE procedures. Physical findings and prior clinical test studies were reported. The clinician assessed severe atrial fibrillation and atherosclerosis (AS) and planned surgery for the next day. Informed consent was obtained and specifically listed pleural effusion as a known risk of the surgery. January 27, 2015 VA surgery report reflected that the Veteran underwent an epicardial MAZE, AVR and pericardial window procedure. A complication of an avulsion to the left pulmonary vein was noted. January 27, 2015 VA post-operative records were also notable for very large right and left atria, friable tissues. January 27, 2015 VA Critical Care unit admission records showed that per surgical notes the left pulmonary vein and left mammary were nicked and sutured with good hemostasis. January 28, 2015 VA cardiothoracic surgery records included chest X-rays noting a large area of dense confluent probable atelectasis, pleural effusion or less likely pneumonia in retrocardiac left lower chest. January 30, 2015 VA chest X-rays noted left lower pulmonary atelectatic changes. February 1, 2015 VA surgery clinic records showed that the Veteran’s shortness of breath (SOB) was improving. The examiner noted the chest X-ray showed improvement, but was “still somewhat wet.” February 3, 2015 VA surgery clinic notes included an addendum. The surgeon reported that the pulmonary vein was not nicked during surgery. He reported bleeding from the base of the left atrial appendage on top of the left superior pulmonary vein was related to the friable tissue and traction on the appendage. On March 4, 2015, the Veteran was discharged from hospitalization with an atrial fibrillation diagnosis. It noted the initial heart surgery with a report that the left pulmonary vein and left mammary were nicked and sutured with good hemostatis. The Veteran also developed a subacute thalamic infarct and urinary tract infection (UTI) requiring additional hospitalization. May 2015 VA cardiothoracic surgery records showed that the Veteran was found to have a left pleural effusion which appeared to be loculated. The clinician recommended placement of a pigtail catheter in interventional radiology for drainage of effusion. The Veteran wanted to wait to see if his new diuretic would resolve the effusion. The clinician recommended a follow up chest X-ray in a month. June 2015 VA primary care records showed that the Veteran felt better after stopping Lasix and his breathing improved. Clinical respiratory findings noted decreased breath sounds of the left base. The clinician assessed left pleural effusion, symptomatically better, but persisting on chest X-ray. A surgical referral was placed. In a subsequent VA primary care report, the Veteran reported SOB returned and a clinician noted that the Veteran had been admitted to private hospital for a syncopal episode. June 2015 private medical records from Dr. A. noted that the Veteran was recently admitted to a private emergency room (ER) following a syncope episode. The Veteran was discharged without any serious problem and was scheduled for cardiac follow-up. The ER chest X-ray showed a large left pleural structure, which looked like a loculated pleural effusion causing significant chest compression of the left lung. Dr. A reported requesting VA records without success. The Veteran affirmed that his breathlessness symptoms had been worsening. He was on blood thinners and his history of chest trauma was limited to the January 2015 VA heart surgery. Dr. A. questioned whether there was left chest fluid retention following the VA surgery, but was uncertain since he was unable to obtain the VA surgical records. Clinical evaluation showed decreased breath sounds throughout the left chest. The recent ER chest X-ray was reviewed. It showed significant compression of the left lung from pleural thickening mass process. Dr. A. concluded there was a significant left pleural process significantly compressing the left lung. He recommended a left-sided thoracentesis to be performed the next day. He noted the Veteran may have an old, significant left pleural fluid from the January 2015 VA surgery that became trapped in the left lung. July 2, 2015 private medical records from Dr. A. showed that the Veteran did not have any more syncopal episodes following left chest thoracentesis with catheter drainage procedure. The Veteran had stopped his Pradaxa medication. Dr. A. expressed concern that the requested VA treatment records were not sent. Chest X-ray continued to show a fair amount of left pleural fluid and pleural reaction compressing the left lung. He reviewed a May 2015 VA CT chest scan showing organized left pleural reaction and atelectasis. He diagnosed remaining large left serosanguineous pleural fluid. He believed it was a complication of the January 2015 VA heart surgery. He stated that “the pleural space was not satisfactorily evacuated to allow the left lung to expand properly.” Now he believed there was a peel on the surface of the left lung trapping it. He did not believe the lung would expand with thoracentesis procedures. He advised thoracic surgery of the left chest to evacuate the left pleural space. He recommended restarting Pradaxa at a half a dose to balance clot and stroke prevention with bleeding risk. July 9, 2015 private medical records showed that the Veteran had a thoracotomy with a diagnosis of left pleural peel. September 2015 private medical records from Dr. A reflected showed that the Veteran greatly improved following the thoracotomy. He reported that the Veteran developed a chronic left pleural fluid effusion following January 2015 VA heart surgery. It resolved with the July 2015 thoracotomy. In March 2016, a VA medical opinion was obtained. It appears that the author of the March 2016 VA opinion was involved in the January 2015 surgery at issue. In any event, the physician opined that the Veteran did not undergo lung surgery, that his postoperative pleural effusion was likely related to his anticoagulant medication, and that the hospital care met the standards of care. In June 2016, an additional VA medical opinion was obtained from a different VA physician. He noted the January 2015 VA heart surgery and July 2015 private thoracotomy to drain the left pleural effusion. He commented that pleural effusion is a recognized sequela of heart surgery. He opined that it was not caused by or made worse by the January 2015 VA heart surgery. He did not find any evidence of fault by the attending VA personnel. The Veteran contends the left pleural effusion, claimed as loss of left lung, warrants compensation under 38 U.S.C. § 1151 as an additional disability caused by the January 2015 VA heart surgery. See January 2016 claim. The evidence is clear that the Veteran developed a left pleural effusion following the January 2015 VA heart surgery as an additional disability. The element in dispute is whether the proximate cause of the additional disability is VA fault in furnishing the January 2015 VA heart surgery. The Board has considered the Veteran’s assertions of VA fault. In this particular case, the salient issue is a complex medical question about appropriate actions taken during heart surgery. It concerns cardiac standards of operative care that are beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be within the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Due to the Veteran's status as a lay witness, his lay statements are not competent to establish fault during the January 2015 VA heart surgery. Id.; Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); 38 C.F.R. § 3.159(a)(1). The medical evidence supporting the Veteran’s claim consists of private medical records from Dr. A. He is a pulmonologist and treating physician for left pleural effusion. His comments from June 2015 and July 2015 medical records show that he did not believe VA properly evacuated the left pleural space during the January 2015 heart surgery and it caused the subsequent left pleural effusion. The medical evidence weighing against the claim consists of the March and June 2016 VA medical opinions. The March 2016 opinion may have been given by a physician involved in the surgery, but, in any event, is without a detailed rationale. It is therefore of little probative weight. The June 2016 VA examiner is qualified as a physician. He reported that the left pleural effusion was a known complication of the January 2015 heart surgery and not an instance of fault from VA care. In this case, the Board finds Dr. A’s comments from the June 2015 and July 2015 private medical records sufficient to show that the Veteran’s left pleural effusion was caused by VA fault in performing the January 2015 heart surgery. Owens v. Brown, 7 Vet. App. 429, 433 (1995) (noting that the Board has the responsibility to assess the credibility and weight to be given to evidence). Dr. A is qualified as a pulmonologist. Accordingly, his opinion regarding the cause of a pulmonary disorder, such a pleural effusion, is highly probative based on his expertise alone. Id. His comments explain why he believed VA erred in the January 2015 heart surgery. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (setting forth factors to be considered in assigning probative weight to an opinion). The Board also observes that Dr. A did not entertain anticogulant use or general surgical complication without fault as possible causes. Rather, his comments specifically identify January 2015 VA surgical error as the cause. The Board notes the limitation to Dr. A’s opinion insofar he did not have VA treatment records available review despite requesting them. However, VA treatment records do not include a detailed operative report with the amount of pleural fluid removed or similar specific details. His reliance on clinical evaluations and medical history related by the Veteran are sufficient informative for his opinion to be probative. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006) (reliance on the service history provided by the veteran only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran). The June 2016 VA examiner does not directly address Dr. A’s determination that the left pleural cavity was improperly evacuated during the January 2015 VA heart surgery. He cites a general review of the medical records to weigh against an instance of VA fault from the January 2015 VA heart surgery and characterizes it as a known complication. In light of Dr. A’s specific report of January 2015 surgical error, the generalized medical opinion of no error is unpersuasive. Id.; Owens, 7 Vet. App. at 433. In sum, the Board finds that the evidence is approximately evenly balanced on the question of whether the left pleural effusion is an additional disability caused the January 2015 VA heart surgery and whether it was due to VA fault in furnishing such surgery. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, compensation under 38 U.S.C. § 1151 for left pleural effusion as an additional disability is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. D. Simpson, Counsel