Citation Nr: 21000962 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 04-36 984 DATE: January 6, 2021 ORDER The appeal to establish entitlement to compensation under 38 U.S.C. § 1151 for bilateral femoral neuropathy resulting from April 2002 cardiac surgery at a VA Medical Center (VAMC) is granted. FINDING OF FACT It is reasonably shown by competent evidence that the Veteran had bilateral femoral neuropathy that was proximately caused by negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA following April 2002 cardiac surgery at a VAMC. CONCLUSION OF LAW The criteria for establishing entitlement to benefits under 38 U.S.C. § 1151 for bilateral lower extremity femoral neuropathy based on April 2002 VA cardiac surgery have been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is the surviving spouse of a Veteran who served on active duty from August 1963 to May 1966. He died in May 2011. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2003 rating decision which, in relevant part, denied compensation under 38 U.S.C. § 1151 for right and left femoral neuropathy. In September 2004, an informal conference was held before a Decision Review Officer (DRO) at the Regional Office (RO); a summary is in the Veteran’s record. In May 2005, a Travel Board hearing was held in Las Vegas, Nevada; a transcript is in the record. [January 2016 correspondence advised the appellant that the Veterans Law Judge (VLJ) who conducted the May 2005 hearing is no longer with the Board, and offered her the opportunity for another Board hearing. Later that month, she replied that she did want another Board hearing. The transcript of the May 2005 hearing is being considered.] In December 2006, the case was remanded for additional development. In March 2008, the Board denied the claim. The Veteran appealed the Board denial to the U.S. Court of Appeals for Veterans Claims (CAVC), resulting in a March 2009 Joint Motion for Remand (JMR) by the parties. A March 2009 CAVC Order remanded the matter for compliance with the JMR instructions. In January 2010 and March 2016, the matter was remanded for an attempt to obtain missing records. In May 2018, the Board requested a Veterans Health Administration (VHA) medical opinion, which was received in January 2019. The appeal was remanded in August 2019 (to allow for Agency of Initial Jurisdiction (AOJ) initial review of evidence), and again in November 2019, May 2020, and September 2020 (for an adequate advisory medical opinion). Entitlement to compensation under 38 U.S.C. § 1151 for bilateral femoral neuropathy is granted. Legal Criteria When a veteran suffers additional disability 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 were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. The veteran must show that the VA treatment in question resulted in additional disability and that the proximate cause of the 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 additional disability was an event which was not reasonably foreseeable. See VAOPGCPREC 40-97; 38 U.S.C. § 1151; 38 C.F.R. § 3.361. To determine whether a veteran has additional disability, VA compares the veteran’s condition immediately prior to the beginning of medical or surgical treatment to the veteran’s condition after such care has stopped. 38 C.F.R. § 3.361(b). To establish actual 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, treatment, or examination and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c). To establish that fault on the VA’s part caused the additional disability, it must be shown that VA hospital care, medical or surgical treatment or examination caused the additional disability and that VA failed to exercise the degree of care expected of a reasonable health care provider, or furnished the hospital care, medical treatment, or surgery, without the veteran’s informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from these requirements that are immaterial under the circumstances of the case will not defeat a finding of informed consent. 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 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. 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 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Factual Background Prior to his death, the Veteran sought compensation under 38 U.S.C. § 1151 for bilateral femoral neuropathy following an April 2002 cardiac surgery at the Puget Sound VAMC. See September 2002 VA Form 21-526. Unfortunately, he died during the pendency of this appeal. His surviving spouse has been recognized as the substitute claimant for purposes of processing this claim to completion. VA treatment records indicate the Veteran underwent cardiac catheterization at the Puget Sound VAMC in March 2002 following progressive chest pain and a “strongly positive exercise test and perfusion in multiple vascular beds.” See March 31, 2002 VA cardiology note. (Right femoral and left brachial arterial entry sites were used. See April 1, 2002 clinical record.) He was discharged home to Alaska and planned to return in the future for an elective coronary artery bypass graft (CABG). [An April 4, 2002 clinical record notes that the “risks and benefits of surgery were discussed at length and the [Veteran] wishes to proceed with an elective CABG.”] Several days later, the Veteran returned to the Providence, Alaska VAMC with complaints of chest pain. See April 10, 2002 cardiac consultation report. Due to accelerating angina, he was evacuated by air ambulance to Seattle and underwent CABG surgery on April 11, 2002. Clinical records note that the risks and complications were discussed with the Veteran prior to surgery, and he “understands the risks and benefits and wishes to proceed.” See April 11, 2002 cardiac surgery consult report. The operation report notes that the Veteran was transported to the surgical ICU in stable condition. Following surgery, he complained of stiffness and spasm of the lower extremities. See April 13, 2002 treatment record. Several days later, he reported lower extremity weakness; deep tendon reflexes were absent bilaterally at the knees. The etiology was unclear but thought to be consistent with either an L2-4 spinal/root lesion or a bilateral femoral nerve vs. bilateral lumbosacral plexus injury. See April 16, 2002 treatment record. An April 19, 2002 neurology progress note explains that the etiology of the Veteran’s suspected neuropathy was “difficult to determine.” Numerous possible causes were considered, to include extreme intraoperative positioning (during saphenous vein graft harvesting), but since the condition was bilateral (and only the right vein was taken) this seemed unlikely. The Veteran was not known to be diabetic. The prior cardiac catheterization was also considered as a possible cause, although this was also found unlikely since the symptoms had developed about 11 days after the procedure. An April 29, 2002 record notes that CT scan ruled out retroperitoneal hematoma, that CT/MRI of the spinal cord ruled out ischemic cord injury, and that electromyography (EMG) showed bilateral (right greater than left) nerve injuries with delayed conduction and some denervation potentials. A June 4, 2002 VA treatment record notes that the bypass surgery “went without a hitch but it was complicated by bilateral femoral nerve injury that goes to the ankles and has neuropathic pain in the legs from the waist down.” The physician wrote he was hopeful for recovery in the next year “but this cannot be predicted with any certainty due to the unusual circumstances of the femoral injury.” A November 2002 VA neurological consult record noted a history of bilateral femoral compressive neuropathies associated with CABG. The Veteran described bilateral quadriceps weakness, and numbness on the anterior and medial aspects of his legs bilaterally. He also reported that he felt that his symptoms of weakness and numbness were gradually resolving with time. The physician noted an assessment of a history of bilateral compressive neuropathies, which were slowly resolving; he also concluded that the Veteran’s balance problems may have been on the basis of peripheral neuropathy, and that he had chronic uremia, which may be an independent factor for axonal degeneration. However, a January 2003 EMG found no evidence of definite peripheral neuropathy, and the findings considered consistent with an early axonal neuropathy. A March 2003 treatment record notes a status of “New Onset Diabetes.” A May 2003 treatment record notes an assessment of status post traumatic bilateral femoral neuropathies without evidence of ongoing axonal denervation, generalized axonal peripheral neuropathy secondary to diabetes, and lumbar strain. At the September 2004 DRO informal hearing, the appellant (a registered nurse with over 30 years of experience), stated that the Veteran had no significant leg problems prior to the cardiac bypass surgery. She related that since the first postoperative day, he has had paralysis of the legs. She opined that such “was an unexpected consequence of the surgery.” At the May 2005 Board hearing, the Veteran’s representative summarized some of the relevant medical records. The Veteran testified that he could not feel sensation from his knees to his feet. The appellant opined that the Veteran’s bilateral lower extremity neuropathy resulted in a sedentary lifestyle, which subsequently caused the onset of diabetes mellitus. And the Veteran’s representative concluded by arguing that negligence and carelessness on the part of VA caused his bilateral lower extremity neuropathy, and that his neuropathy was more likely than not a result of the coronary artery bypass surgery, and not his diabetes (which was diagnosed after the surgery, in February 2003). On February 2007 VA examination, the Veteran reported leg pain and occasional numbness of the feet. EMG of both lower extremities and paraspinal muscles revealed normal insertional resting and exertional potentials. The impression was “consistent with a peripheral neuropathy.” The examiner, a physician, opined that the peripheral neuropathy was due to the Veteran’s diabetes; he found “no evidence of compressive neuropathies which could be related to his 4/02 coronary artery bypass graft.” He related all symptoms to diabetic peripheral neuropathy. In January 2019, a Baylor College of Medicine associate professor of surgery and physician reviewed the Veteran’s relevant medical records and noted the development of postoperative bilateral quadricep weakness and numbness of the anterior and medial aspects of his lower extremities. He also noted that EMG then showed bilateral femoral nerve neuropathy of unknown etiology. He opined that although the CABG “was associated with the [Veteran’s] femoral neuropathy and disabilities, there was NO 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, to include pre-and post-operative medical or surgical treatment.” No rationale was provided. In January 2020, VA notified the appellant that a copy of the April 2002 Informed Consent Form from the Puget Sound VAMC could not be located and therefore was unavailable. The letter detailed the efforts taken to obtain the record. Jan 2020 – informed consent form not available. In February 2020, a VA physician, Dr. M.K., reviewed the record and opined that the Veteran’s femoral neuropathy “has been caused by the Diabetes condition.” He acknowledged the April 2002 EMG finding of bilateral femoral neuropathies of uncertain etiology and the November 2002 neurological consult record which showed bilateral femoral compressive neuropathy associated with bypass surgery. However, he cited to a February 2007 EMG which showed diabetic neuropathy and stated that over the years the Veteran’s diabetes caused him to develop diabetic neuropathy. He opined that the Veteran’s diabetic neuropathy was less likely than not related to the April 11, 2002 CABG and subsequent recovery care. He did not address the appellant’s opinions, as directed by the prior remand. In a June 2020 addendum, Dr. M.K. opined that the Veteran “sustained a transient bilateral femoral compressive neuropathy after the bypass surgery, but this compressive neuropathy has resolved by 2007.” He also opined that the femoral compressive neuropathy “was a reasonably foreseeable consequence of the April 2002 CABG surgery.” No additional rationale was provided. In September 2020, a VA (fee basis) internal medicine physician reviewed the record and opined: The Veteran’s bilateral compression femoral neuropathy was directly the result of the Veteran’s treatment at the VAMC, and occurred as a complication of his cardiac surgery. The condition was not present pre-operatively and was present after his surgical procedure. The Veteran subsequently suffered two separate episodes of falling during his hospitalization as the result of his leg weakness. However, the records do not support any associated injuries with these falls, or any subsequent long term sequelae. There is no long term disability associated with the Veteran’s femoral neuropathy, and his subsequent lower extremity neurologic condition is the result of diabetic peripheral neuropathy, not his bilateral compression femoral neuropathy, which resolved both clinically and electrophysiologically. He continued to explain that: The medical records support the contention that the Veteran suffered bilateral femoral compression neuropathy surrounding his heart surgery in April 2002. While it is not certain whether this compression neuropathy was due to poor positioning of the Veteran during surgery, saphenous vein graft harvesting, or less likely prior cardiac catheterization, neurologic evaluation with associated EMG, confirmed the diagnosis of bilateral femoral nerve compression neuropathy. Since this condition was not present prior to surgery, and was apparent in the immediate peri-operative period, it was at least as likely caused by the Veteran’s treatment at the VAMC. He further continued to explain, with citation to medical treatise regarding peripheral nerve disorders after cardiac surgery: Since the exact circumstances that resulted in the Veteran’s bilateral compression femoral neuropathy are not known or documented in the medical record, It is not possible to state with certainty whether the disability resulted from CARELESSNESS, NEGLIGENCE, LACK OF SKILL, and OR SIMILAR INCIDENCE OF FAULT ON THE PART OF THE ATTENDING VA PERSONNEL. It is known that following cardiac surgery, about 6% of patients will suffer a peripheral nerve injury, mostly due to compression, traction, or nerve ischemia. Proper patient positioning can prevent most of these injuries. Given this data, it is at least as likely as not that the additional disability resulted from lack or (sic) proper patient positioning, inadvertent traction, compression, or nerve ischemia. Therefore, the argument can be made that the disability resulted from CARELESSNESS, NEGLIGENCE, LACK OF SKILL, OR SIMILAR INCIDENCE OF FAULT ON THE PART OF THE ATTENDING VA PERSONNEL. He went on to opine “it is at least as likely as not that additional disability of bilateral compressive femoral neuropathy COULD HAVE REASONABLY BEEN FORESEEN BY A REASONABLE HEALTHCARE PROVIDER, and potentially prevented by proper attention to factors such as patient positioning, and traction on the nerve.” He stated that “the condition/disability was recognized and managed in a timely and appropriate fashion.” [He also stated that there is no documentation in the record regarding the informed consent process, and there is no documentation that the Veteran did or did not receive information regarding the potential development of compression femoral neuropathy.] Although his earlier opinions were stated in a somewhat speculative format, the physician concluded that “VA FAILED TO EXERCISE THE DEGREE OF CARE THAT IS EXPECTED OF A REASONABLE HEALTH CARE PROVIDER.” He again wrote, “the argument can be made that the disability resulted from CARELESSNESS, NEGLIGENCE, LACK OF SKILL, OR SIMILAR INCIDENCE OF FAULT ON THE PART OF THE ATTENDING VA PERSONNEL” [all emphases in original]. Analysis To establish entitlement to benefits under 38 U.S.C. § 1151, the appellant (as substitute claimant) must show both that the Veteran had additional disability caused by VA hospital care, or medical or surgical treatment (and not due to his own misconduct), and that the proximate cause of the additional disability was carelessness, lack of proper skill, error in judgment, or similar instance of fault (on the part of VA), or was an event not reasonably foreseeable. To establish actual causation, the evidence must show that the hospital care, or medical/surgical treatment resulted in the Veteran’s additional disability. A mere showing that he received care, treatment, or examination, and had an additional disability, does not establish cause. Here, the evidence shows that the Veteran had an additional disability, bilateral femoral neuropathy, caused by VA surgical treatment (CABG) on April 11, 2002. Both the February 2020 (with June 2020 addendum opinion) and September 2020 advisory medical opinions confirm such diagnosis (even if noted to be “transient” or, alternatively, “without long term disability” associated with such.) What remains to be established is that there was fault on the part of VA in the treatment provided (or that the additional disability is a consequence of treatment provided that was not reasonably foreseeable). Upon review of the record, the Board concludes that the competent evidence is, at least, in relative equipoise as to whether the Veteran’s bilateral femoral neuropathy was proximately caused by VA surgical treatment and subsequent hospital care, and that VA failed to exercise the degree of care expected of a reasonable health care provider. [Regarding foreseeability, the Board finds noteworthy the June 4, 2002 notation (regarding prognosis for recovery) by a then-treating VA provider that the neuropathy had appeared under “unusual” circumstance. This suggests that it was unexpected.] As noted above, this matter was remanded numerous times for a fully adequate advisory medical opinion. In September 2020, a VA (fee basis) internal medicine physician reviewed the record and opined that the Veteran’s diagnosed bilateral femoral neuropathy (confirmed on EMG study) was caused by the April 2002 VA CABG surgery. Initially, he explained that because the exact circumstances that resulted in the compressive femoral neuropathy are not known, it is not possible to state with certainty (which is not required to substantiate the claim) whether the disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the VA. Thereafter, however, he explained that only 6% of cardiac surgery patients suffer a peripheral nerve injury, and that “Proper patient positioning can prevent most of these injuries.” [So with proper positioning only a minor portion of the 6 % would not have occurred.] He cited to a medical treatise regarding peripheral nerve disorders after cardiac surgery, and stated, “Given this data, it is at least as likely as not that the additional disability resulted from lack or (sic) proper patient positioning, inadvertent traction, compression, or nerve ischemia. Therefore, the argument can be made that the disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel.” He subsequently wrote that VA failed to exercise the degree of care that is expected of a reasonable care provider. The internal medicine physician is competent to offer the opinions and the Board finds no reason to question the opinions/conclusions reached; notably, he reviewed the record, summarized the relevant history, and cited to a relevant medical treatise in support of his conclusion. The Board finds the opinion adequate for rating purposes, and finds it to be the most complete and most probative medical opinion of record. Considering the foregoing, the Board finds that evidence supporting and against whether all requirements for substantiating a claim under 38 U.S.C. § 1151 are met is at least in equipoise. Under governing law, the Board the remaining reasonable doubt is resolved in favor of the appellant. The requirements for substantiating a claim for entitlement to compensation under § 1151 for the Veteran’s bilateral femoral neuropathy (as resulting from April 2002 VA CABG surgery) are met. The appeal in the matter is granted. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, 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.