Citation Nr: 20021166 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 10-13 882 DATE: March 24, 2020 ORDER The claim for compensation under 38 U.S.C. § 1151 for the cause of the Veteran’s death is granted. FINDINGS OF FACT 1. The medical records indicate that during his lifetime, the Veteran developed a hematoma at the site of phlebotomy, later resulting in hospitalization and a subsequent illness. 2. Resolving reasonable doubt in favor of the claim, the medical opinion evidence shows that these events which led to the cause of the Veteran’s death were not reasonably foreseeable, and meet the VA definition of proximate causation. CONCLUSION OF LAW The criteria are met to establish Dependency and Indemnity Compensation (DIC) benefits under 38 U.S.C. § 1151. 38 U.S.C. §§ 1151, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.361 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from May 1944 to November 1945. He was the recipient of the Combat Infantryman Badge. The Veteran died in February 2009 and the appellant is his surviving spouse. The Board previously remanded this case in March 2015, then seeking a VA opinion addressing the medical questions for purposes of this case. Thereafter, on further review and consideration, the Board obtained an October 2019 Independent Medical Expert (IME) opinion. The Veteran’s representative requested that the IME opinion was considered in connection with this case, thus a waiver of consideration by the Agency of Original Jurisdiction (AOJ). The claim for DIC under 38 U.S.C. § 1151. When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.358(a) (2018). To be awarded compensation under 38 U.S.C. § 1151, the veteran must show that VA treatment (or other qualifying event) resulted in additional disability, and further, 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 medical or surgical treatment, or that the proximate cause of the disability was an event which was not reasonably foreseeable. 38 U.S.C. § 1151; VAOPGCPREC 40-97 (Dec. 31, 1997), 63 Fed. Reg. 31,262 (1998). In determining whether additional disability exists, the veteran’s physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other relevant incident in which the claimed disease or injury was sustained upon which the claim is based, is compared to the veteran’s condition after such treatment, examination or program has stopped. 38 C.F.R. § 3.361(b). Provided that additional disability exists, the next consideration is whether the causation requirements for a valid claim for benefits have been met, to consist of both actual and proximate causation. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the veteran’s additional disability. If it is shown merely that a claimant received medical care or treatment, and has an additional disability, that in and of itself would not demonstrate actual causation. 38 C.F.R. § 3.361(c)(1). The proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment or other instance of fault proximately caused the additional disability, it must be shown that VA failed to exercise the degree of care expected by a reasonable treatment provider, or furnished the treatment at issue without informed consent. 38 C.F.R. § 3.361(d)(1). Proximate cause may also be established where the additional disability was an event not reasonably foreseeable, 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 medical provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent (in accordance with 38 C.F.R. § 17.32). 38 C.F.R. § 3.361(d)(2). The Board finds that the requirements for recovery under section 1151 are met. The available evidence has been considered and is addressed below. The situation was very unfortunate looking at the medical background. It occurred in the process of attempting to provide other medical treatment, and the key factor is that while negligence is not proven the situation was not reasonably foreseeable. From the record, the Veteran on January 16, 2009 had blood drawn at a VA medical facility, the North Little Rock VA Medical Center (VAMC) in Little Rock, Arkansas. The phlebotomy occurred prior to cataract surgery. It was considered a routine procedure. The Veteran was taking warfarin at that time as an anti-coagulant. There was no reported adverse effect from the phlebotomy for approximately two weeks. Subsequently there developed a hematoma at the site of the original venipuncture and treatment was sought at a private hospital on February 5, 2009. There was subsequent complication including stenosis of the brachial artery and stasis pigmentation, and it was treated with good results. Unfortunately there was then a hospital acquired bilateral pneumonia. After several treatment measures that condition eventually led to his death in February 2009. The issue now before the Board for purposes of this claim concerns only the treatment from a VA facility, the January 2009 phlebotomy. Another consideration from the medical standpoint is that the Veteran at the time of the venipuncture had switched to a different anti-coagulant medication, having gone from Warfarin to Lovenox on February 3, 2009. That happened at the VAMC prior to learning that the Veteran had the hematoma and complications from the phlebotomy. The Veteran’s representative previously raised the issue of whether this contributed to the medical circumstances and cited medical journal articles indicating that there were several potential complications that could arise as a result of an arterial blood sampling when taking blood anti-coagulants and that this might include hematoma or excessive bleeding. The contention advanced was that “the timeline of events, which include the blood draw, followed by the stopping one anticoagulant and starting another, apparently led to the development of the hematoma at the blood draw site.” The representative cited an online NIH medical abstract to support this contention. The Veteran’s surviving spouse then filed the instant claim for DIC due to averred deficient medical treatment, under the provisions of 38 U.S.C. § 1151. In furtherance of evidentiary development of this claim, the May 2009 VA medical opinion was obtained in this case indicating results that tended to weigh against the claim. Two subsequent opinions were obtained. The July 2016 VA opinion was from another evaluating VA physician. The more recent October 2019 opinion was from an Independent Medical Expert, at the Board’s request to provide further insight and a specific expert assessment. See 38 U.S.C. § 5109 (2012); 38 C.F.R. § 3.328 (2019). The VA opinion indicated from 2009 was as follows: The Veteran was elderly and with chronic heart disease and, therefore, a good candidate for postoperative [additional words not clear from report] and pneumonia. He was not excessively anticoagulated at anytime as far as I can determine from the record. The VA phlebotomist could not have reasonably anticipated the development of a hematoma which did not become evident until 2 weeks after the venipuncture. There is no evidence that the Veteran returned to the VA or notified anyone at the VA of the development of the abnormality. He subsequently required surgery due the hematoma and postoperatively he was slow to mobilize and then developed apparent stasis pneumonia and respiratory failure which led to his death. The Veteran’s Administration could not have reasonably anticipated the late development of a hematoma and was given no opportunity to correct that situation. It is possible that earlier mobilization of the Veteran after surgery would have prevented the pneumonia, but that is speculative. I see no evidence of carelessness, negligence, lack of proper skill, error in judgment, or fault on the part of the Veteran’s Administration. The 2016 VA opinion stated as follows, in response to the questions cited below: 1) Is it at least as likely as not (i.e., a probability of 50 percent or greater) that the venipuncture for a blood draw on January 16, 2009, caused the Veteran’s death? The Veteran had previous aortic and mitral valve replacements, chronic atrial fibrillation, had been on long-term anticoagulation and was being changed from Coumadin to Lovenox in anticipation of upcoming cataract surgery. Three weeks preop, however, as part of his preop screening, he had a venous blood draw in the left antecubital area which was a necessary procedure for this gentleman. The hematoma was as likely as not due to the blood draw and required surgery. The blood draw was necessary and in this gentleman’s case would be required to meet the standard of care for an individual with his conditions and future eye surgery. At his age and the number of risk factors for noncardiac surgery, his death would be of concern to his health care providers. The chain of events did lead to his death. 2) If so, was the Veteran’s death proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in performing the January 2009 venipuncture, or was the proximate cause of the Veteran’s death an event not reasonably foreseeable? For the necessary blood draw there was not carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in performing the January 2009 venipuncture. The Veteran’s events and death was not reasonably foreseeable. Out of thousands of blood draws in veterans with his conditions these events are rare. The blood draw itself was necessary. 3) With regard to the latter inquiry, the examiner is advised that 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. In offering such opinion, the examiner should consider the May 2009 VA examiner’s statement that VA could not have reasonably anticipated the late development of a hematoma. I agree with the previous response that a reasonable health care provider would not have considered the events to be an ordinary risk of the treatment provided. Out of the thousands and thousands of blood draws daily the events in this man would not be anticipated. The October 2019 Independent Medical Expert opinion was obtained from a physician and university professor in Internal Medicine (Cardiology), Emergency Medicine and Radiology. The IME opinion was stated as follows: Case Review and Summary: The Veteran had previous bioprosthetic aortic and mitral valve replacements, chronic atrial fibrillation, for which he was on long-term anticoagulation. He underwent blood sampling at the VA hospital on January 16, 2009 in preparation for cataract surgery. Prothrombin time at that time was 2.8 with an INR of 2.6 which was within the therapeutic range for anti-coagulation for atrial fibrillation. There is no indication that the Veteran had a hematoma after the blood drawing. In anticipation of his upcoming cataract surgery, he was changed from Coumadin to enoxaparin. Three to four days later he presented and was then hospitalized at Baptist Health Medical Center in North Little Rock for arm swelling. He underwent an ultrasound which showed a multiloculated fluid collection above and extending below the antecubital fossa in the left arm which was later diagnosed as a hematoma. His prothrombin time at admission on February 5th of 1.5 INR and PTT was 35.9. An arteriogram of the left arm on February 6, 2009, showed critical brachial-artery stenosis presumably from external compression, which led to his surgery where the hematoma was evacuated with excellent pulses afterwards. On February 8th he was still in the Intensive Care Unit. At that time his arm was said to be normal and his chest was clear. He subsequently developed respiratory failure, pneumonia and then died on February [REDACTED] at the hospital of respiratory failure secondary to nosocomial pneumonia (pneumonia acquired as a result of hospitalization). Conclusion: There was no indication of fault on VA’s part in performing the January 2009 venipuncture. The Veteran’s events and death was not reasonably foreseeable. This type of event is exceedingly rare, even in patients treated with anti-coagulation. The fact that it occurred weeks after the blood draw makes the likelihood it occurred as a result of the phlebotomist carelessness, negligence, lack of proper skill, error in judgment even less likely. I agree with the previous responses that a reasonable health care provider would not have considered the events to be an ordinary risk of the treatment provided, and that the VA could not have reasonably anticipated the late development of a hematoma. Having reviewed the above, there is clearly sufficient basis for service connection for the cause of the Veteran’s death, including due requirements of direct and proximate causation being met. There is no material dispute in medical opinions given that direct cause is shown. An instance of treatment set in motion over time a course of subsequent medical problems. This established direct causation. As to proximate causation, the evidence substantiates this requirement, if not confirmed by medical fault on the part of VA, then the second possibility of an incident without foreseeability. Regarding the first prong of proximate causation, the opinion providers did not find faulty medical treatment. The grounds were that the phlebotomy was normal procedure, to standard of care, without reported problems until two weeks later. They did not find a showing of fault, negligence, or deficient medical care. All three of the examiners fully agree, the events in question were not reasonably foreseeable. The October 2019 IME expert also happened to state that this situation was exceedingly rare. The lack of ordinary foreseeability shown and for which a reasonable medical treatment course would be prepared, that meets VA’s regulatory definition of proximate causation. 38 C.F.R. § 3.361(d)(2). Accordingly, the complete criteria for this claim are met, and the grant of the claim for compensation under section 1151 is warranted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jason Lyons, 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.