Citation Nr: 20005337 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 19-10 203 DATE: January 23, 2020 ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for lesion damage to include collapsed right lung and paralyzed right diaphragm. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for lesion damage to include collapsed right lung and paralyzed right diaphragm is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1995 to May 2003. This matter is before the Board of Veterans Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). As a threshold issue, the Veteran was afforded proper notice under the VCAA per a February 2016 letter. The notice provided discussed how to substantiate a claim for compensation under 38 U.S.C. § 1151. Entitlement to compensation under 38 U.S.C. § 1151 for lesion damage to include collapsed right lung and paralyzed right diaphragm is remanded. In light of the Veteran’s contentions, a remand is necessary for additional development. In pertinent part, 38 U.S.C. § 1151 provides for compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. A disability or death is a qualifying additional disability if the disability or death was not the result of the Veteran’s willful misconduct and (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, and (2) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361 (b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran’s additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361 (c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or 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. 38 C.F.R. § 3.361 (c)(2). Additional disability or death caused by a Veteran’s failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361 (c)(3). The proximate cause of disability or death is the action or event that directly caused the disability or death, 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 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, medical or surgical treatment, or examination caused the Veteran’s additional disability or death (as explained in paragraph (c) of this section); 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. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. 38 C.F.R. § 3.361 (d)(1). Whether the proximate cause of a Veteran’s additional disability or death 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). 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 § 17.32 of this chapter. 38 C.F.R. § 3.361 (d)(2). By way of history, on March 18, 2014, the Veteran underwent an operation for minimally invasive mitral valve repair via a 4 cm mini right thoracotomy at the Tampa VA Medical Center (VAMC). The preoperative diagnosis that same day was, “Severe mitral regurgitation with P2 prolapse, status post stent to the left circumflex in 12/2013. Patient with fatigue and worsening functional capacity for the last 3 months.” VA treatment records dated August 25, 2014, show the Veteran reported having lung complications. Following the receipt of his claim, a VA medical opinion was obtained in July 2016. The VA examiner opinioned: It is at least as likely as not that the veteran’s Right phrenic nerve injury, Right paralyzed diaphragm, and Right damaged/collapsed lung are all the result of a complication from his MVR surgery on 18 March 2014. It is less likely as not that the veteran's current Right phrenic nerve injury, Right paralyzed diaphragm, and Right damaged/collapsed lung were caused or aggravated to any degree from any carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel, or as a result of failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowing the disease or disability to continue to progress. Rationale: Phrenic nerve injury, with resulting paralyzed diaphragm, and resulting collapsed lung are all common complications from open heart surgery as required in this veteran. These complications will occur from this type of surgery in some small percentage of cases even with the most careful care and under the even the best conditions and circumstances. The operative note from the procedure dated 18 March 2014 including pre-operative and postoperative notes reveal no objective evidence for any irregularities, no breach of the standard of care, and the care provided appears to have been appropriate. The VA examiner included further explanation, citing to evidence in the record from after the surgery. The Board observes that the medical opinion was provided by a “C&P certified Physician; Board Certified in Emergency Medicine, Aerospace Medicine, Occupational Medicine, and Medical Toxicology.” The VA examiner remarked, “Although I am not currently a Cardiovascular Surgeon, I trained for more than 6 months as a Senior resident in Cardiovascular and Thoracic surgery during my residency training, and am familiar with the specialty and procedural complications.” Next, the Veteran perfected his appeal in March 2019. He highlighted that the VA examiner was not a cardiovascular surgeon. The Veteran requested a VA examination performed by a “Board Certified Cardiovascular Surgeon.” He also wrote that he will submit new medical evidence to support his appeal. Two months later, the Veteran through his representative submitted a VA 646 Statement of Accredited Representative in Appealed Case entitled Appellant’s Brief. First, the Veteran contends that the July 2016 VA medical opinion was not rendered by a cardiovascular surgeon, but by a physician who trained for 6 months as a resident in cardiovascular and thoracic surgery. Second, the Veteran through his representative identified internet links to medical literature. They also cited caselaw, including showing that VA is free to supplement the record with medical opinions or by consulting medical treatises. Here, the Board has considered that the Veteran has continued to challenge the credentials of the VA examiner as they relate to the adequacy of the July 2016 VA medical opinion. Moreover, the VA examiner did not fully address the critical first prong concerning informed consent and foreseeability under 38 U.S.C. § 1151. 38 C.F.R. § 3.361 (d). On remand, the AOJ should submit the evidentiary record to a new VA examiner with the appropriate expertise to be reviewed, and the examiner should opine as to whether the Veteran’s disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the medical treatment, or whether the outcome of the procedure was an event not reasonably foreseeable. The Veteran has also introduced additional medical literature links to be considered by the VA examiner. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Therefore, to fully address the Veteran’s contentions, and to assist in fully developing the Veteran’s claim, a VA medical opinion from a separate medical facility is necessary. Consistent with the March 2019 VA Form 9, the Veteran is also invited to submit additional evidence to support his contentions, including full copies of any medical literature. The matters are REMANDED for the following action: 1. If the Veteran identifies other evidence, obtain updated copies of the Veteran’s VA treatment records, and associate them with the Veteran’s claims folder. 2. Then, obtain a VA medical opinion with a different VA examiner not affiliated with the Tampa VA Medical Center (VAMC) of appropriate expertise who will opine as to whether the Veteran’s lesion damage, to include collapsed right lung and paralyzed right diaphragm, was caused or related to malpractice by VA. This should be an examiner who can comment on the proper risks and procedures associated with open heart surgery, though not necessarily a cardiovascular surgeon. The claims file must be made available to the examiner, and reviewed in conjunction with rendering the medical opinion. However, the VA examiner does not need to examine the Veteran in person unless found to be necessary following a review of the claims file. Then, after reviewing the claims file, the VA examiner should offer the following opinions with supporting rationale: (a) Did the Veteran receive proper informed consent before the heart procedures in March 2014 advising him of the risks, including that he could suffer a phrenic nerve injury, resulting in paralyzed diaphragm and collapsed lung, as complications from open heart surgery? (b) Is it at least as likely as not that any disability in the Veteran’s phrenic nerve, diaphragm, and lung was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or, an event not reasonably foreseeable by the VA in performing the surgical heart procedures? The VA examiner should specifically comment on any objective testing in the VA treatment records. (c) Please comment on the medical literature cited to in the May 2019 VA 646 with attached Brief. The complete rationale for all opinions should be set forth. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). If the examiner rejects the Veteran’s reports, the examiner must provide an explanation for such rejection. 3. After completing the above, and any other necessary development, the claim(s) remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Bodi, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.