Citation Nr: 21001281 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 15-18 730A DATE: January 7, 2021 ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a ventral hernia as a result of coronary artery bypass grafting by the Department of Veterans Affairs (VA) Puget Sound Health Care System in October 2007 is denied. FINDING OF FACT 1. The Veteran underwent coronary artery bypass grafting at the VA Puget Sound Health Care System in October 2007. 2. The Veteran has a ventral hernia caused by the coronary artery bypass grafting procedure. 3. The Veteran’s ventral hernia was not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment. The development of the hernia was not due to an event not reasonably foreseeable, and VA furnished care with the Veteran’s informed consent. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for a ventral hernia as a result of coronary artery bypass grafting by the VA in October 2007 have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.361, 17.32. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from June 1964 to January 1967 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran withdrew his request for a Board hearing. There is no hearing request presently pending. 1. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for a ventral hernia as a result of coronary artery bypass grafting by the VA in October 2007 is denied. A veteran disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. 38 U.S.C. § 1151. An additional disability is a qualifying disability if: (1) it was not the result of the veteran's willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C. § 1151(a). 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 the care or treatment is rendered. The additional disability or death must not have been due to the veteran's failure to follow medical instructions. 38 C.F.R. § 3.361. To establish actual causation, the 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. 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 or properly treat the disease proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c). To establish proximate causation, the evidence must show that: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider (i.e., negligence); 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; OR (iii) the proximate cause of the additional low back disability was an event that was not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(d). The Veteran seeks entitlement to compensation under 38 U.S.C. § 1151 for the development of a ventral hernia due to a surgical cardiac procedure performed at the VA Puget Sound Health Care System in October 2007. In the July 2014 rating decision on appeal, the RO denied the Veteran’s claim. In May 2019, the Board also denied the claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2020, the Court vacated the May 2019 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). The parties noted that in the determination of whether an event is reasonably foreseeable, VA will consider whether the risk of the event was the type of risk that a reasonable health care provider would have disclosed in connection with the relevant informed consent procedures. The parties found that a May 2015 VA examination report, on which the Board relied, had not provided an opinion in this regard. In September 2020, the Board remanded the appeal for development consistent with the Joint Motion. Turning to the facts of the case, during a July 2007 cardiology appointment, the Veteran performed a stress test and the examiner provided an assessment of his cardiac risk factors. His risk factors included a possible prior myocardial infarction, hypertension, dyslipidemia, a positive history of smoking for 50 years, advancing age, and being of the male sex. In early October 2007, the Veteran sought treatment for exertional chest burning, which occurred routinely while mowing his lawn uphill. A stress test was consistent with ischemia. His VA cardiologist found both his history and test findings “concerning” and recommended that a cardiac catheterization be performed. The cardiac catheterization procedure revealed “significant” three-vessel coronary artery disease. There was occlusion of the right coronary artery, and 90 percent occlusion of the left anterior descending coronary artery. The cardiologist thus recommended that he undergo coronary artery bypass grafting (CABG). Records thereafter reflect that the Veteran provided informed consent to heart surgery. Upon consultation with the surgeon, he was informed of risks such as bleeding, stroke, heart attacks, dye reactions, and death. Surrounding records reflect that the Veteran’s questions had been answered, he understood the potential risks and benefits of surgery, and that he consented to the procedure and plan for sedation. An October 2007 consent for treatment and procedure form reflects that he had decision-making capacity at the time that he signed the consent form. Surgical records reveal that the CABG went well. On discharge, compression palsy of the ulnar nerve at the elbow was noted to have possibly occurred intraoperatively. No other complications were found. The Veteran’s sutures were thereafter removed, and follow-up visits in 2007 and 2008 revealed no pertinent abnormalities or complications. VA progress notes dated through April 2013 continued to show no evidence of a hernia. It was not until May 2013 when a VA provider documented the presence of a small ventral hernia. In August 2013, the Veteran submitted medical literature concerning ventral hernias. The article, obtained online from FreeMD, explains that a ventral hernia involves a piece of intestine that protrudes through an abnormal opening in the abdominal wall. In order for a ventral hernia to form, there must be a hole, tear, or weakened area in the abdominal wall. The article notes that this usually occurs due to a previous surgical incision. On VA examination in May 2015, the examiner noted that the Veteran’s 2007 surgery had gone very well. He had some coagulopathy and a slightly prolonged amount of time was required for drainage, but these issues resolved. There was no history of infection. Approximately six to eight months after the surgery, he developed a small ventral hernia in the area of a chest tube. The hernia had grown over time and was approximately the size of a fist. The examiner opined that a ventral hernia is a possible expected outcome of CABG, occurring in approximately one percent of surgeries, even with proper procedures. The Veteran was at some extra risk because of his coagulopathy and slightly prolonged chest tube time, but there is no evidence of careless, negligence, on the part of the VA providers concerning the ventral hernia. In November 2015, a VA provider documented the presence of a hernia secondary to heart surgery. In January 2016, the Veteran submitted an article from the University of California Los Angeles (UCLA) lung cancer program discussing the purpose of chest tubes and methods of their use. The article also noted that most people recover fully from chest tube insertion and removal, with only a small scar resulting. In several VA treatment records, including those from December 2016 and August 2020, the Veteran was diagnosed with chronic ischemic heart disease, status-post CABG, with secondary ventral hernia. On VA examination in October 2020, the examiner reviewed the claims file and provided a detailed summary of pertinent medical records. He explained that CBAG is a procedure that requires a large incision extending from the anterior thoracic down to the upper abdominal area. He stated that the development of a ventral hernia would be considered an ordinary risk of the surgery and disclosed in connection with informed consent procedures. He explained that a ventral hernia is a common complication of ventral abdominal surgery due to weakness within the abdominal wall muscles during the process of healing, a factor beyond the control of a healthcare provider. As such, he opined it is less likely than not that the Veteran’s ventral hernia was the result of carelessness, negligence, a lack of proper skill, an error in judgment, or a similar instance of VA fault. Turning to the merits of the appeal, the Board finds that the first requirement of a 38 U.S.C. § 1151 claim, an additional disability, is established. The Veteran’s additional disability is a ventral hernia. A comparison of the record prior to October 2007, including a November 2004 VA examination report for example, reveals that he did not have this disability prior to the 2007 VA treatment. As for the second requirement of a 38 U.S.C. § 1151 claim, actual causation, the Board finds the evidence also indicates the ventral hernia developed due to the CABG procedure. This is supported by the VA examination reports of May 2015 and October 2020, as well as VA treatment records of November 2015, December 2016, and August 2020. There is no evidence to the contrary. The opinions of the May 2015 and October 2020 examiners are fully adequate as they were based on a review of the entire pertinent medical record and are supported by a rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). However, on the third and final requirement of a 38 U.S.C. § 1151 claim, proximate causation (which contemplates informed consent, VA fault, and reasonable foreseeability), the preponderance of the evidence is against the claim. The Veteran does not dispute the matters of VA fault or informed consent; rather, as discussed below, he argues that the development of his ventral hernia was not reasonably foreseeable. Moreover, the Board’s findings regarding VA fault and informed consent were undisturbed by the Court in the parties’ Joint Motion. As for carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA, the record does not indicate any fault on the part of VA. The VA surgical records and post-surgical records themselves contain no indication in this regard. The May 2015 VA examiner found that the development of a ventral hernia was a possible expected outcome of CABG, even with proper procedures, and there was no evidence of careless or negligence on the part of the VA providers concerning the ventral hernia. The October 2020 VA examiner similarly found that a ventral hernia is a common complication of ventral abdominal surgery due to weakness within the abdominal wall muscles, a factor that is beyond the control of a healthcare provider. As such, he found no VA fault in the Veteran’s development of a ventral hernia. There is no evidence to the contrary of these opinions, and they are fully adequate for adjudication. See Stefl, 21 Vet. App. at 123. As for informed consent, there is no indication that VA furnished hospital care, medical or surgical treatment, or examination without the Veteran’s informed consent. Rather, the Veteran was informed of the known risks and had decision-making capacity at the time that he signed the consent form. Records reflect that all questions had been answered, the Veteran understood the potential risks and benefits, and he consented to the procedure and plan for sedation. There is no evidence to the contrary. To the extent the medical record does not document that the Veteran was explicitly advised of the risk of developing a ventral hernia, the absence of a specific list of risks is not evidence that VA failed to obtain informed consent, and it may not be presumed that complications were not discussed because they were not recorded. See Halcomb v. Shinseki, 23 Vet. App. 234, 241(2009) (holding that the veteran did not establish a lack of informed consent before eye surgery as the basis for entitlement to compensation benefits for loss of vision of the eye under 38 U.S.C. § 1151 based solely on the failure of consent documents to list specific disclosed risks). Furthermore, the failure to advise a patient of a foreseeable risk can be considered an immaterial deviation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk. McNair v. Shinseki, 25 Vet. App. 98, 107 (2011). In this regard, the adjudicator must not only look to the likelihood of an undisclosed risk materializing, but also recognize that some foreseeable risks may be minor when compared to the foreseeable consequences of continuing without undergoing the treatment. Id. The adjudicator must consider the consequences of proceeding with surgery versus foregoing surgery, which are key factors upon which one might evaluate whether a reasonable person would have proceeded with the surgery. Id. at 108. Here, coronary artery bypass grafting was recommended because the Veteran had significant three-vessel coronary artery disease, involving occlusion of the right coronary artery and a 90 percent blockage of the left anterior descending coronary artery. He had additional cardiac risk factors that included a questionable prior myocardial infarction, hypertension, dyslipidemia, a positive history of smoking for 50 years, advancing age, and being of the male sex. The Board finds that a reasonable person, diagnosed with coronary artery disease of this severity confounded by multiple additional risk factors, would proceed with CABG even if informed of the foreseeable risk of developing a ventral hernia. The risk of developing a ventral hernia, according to the May 2015 VA examiner, is one percent. When comparing this to the consequences of experiencing a cardiac event by foregoing the CABG, the Board finds that a reasonable person would accept the foreseeable, one percent risk of developing the hernia. As such, to the extent it is possible that VA did not explicitly advise the Veteran of the risk of developing a ventral hernia, this constitutes an immaterial deviation from informed consent procedures. On the matter of reasonable foreseeability, the May 2015 VA examiner found that the development of a ventral hernia is a possible expected outcome of CABG that is known to occur even with proper procedures. The October 2020 examiner explained that it is a “common complication” of the Veteran’s type of surgery due to weakness within the abdominal wall muscles during the healing process. As previously found, these opinions are fully adequate for adjudication. See Stefl, 21 Vet. App. at 123. In contrast, the Veteran asserts that as the UCLA article he submitted indicates that “most people completely recover” from the surgery with only a “small scar,” his development of a fist-sized hernia was not reasonably expected. The Board finds that the UCLA article does not address the facts that are specific to this Veteran's particular case. Namely, the article pertains to the use of a chest tube in the treatment of lung cancer, rather than CABG. It also does not account for individual factors such as the strength or weakness of a particular individual’s abdominal wall. The article is further contradicted by the FreeMD article the Veteran submitted, which explains that ventral hernias are “usually” caused by a previous surgical incision, supporting that they are reasonably foreseeable. As such, the Board finds that the information reflected in the UCLA article simply is not probative of the specific medical questions at issue in this appeal, and is outweighed by the professional opinions of the May 2015 and October 2020 VA examiners, which are more focused on the particular circumstances at issue here. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). The Board has additionally considered the concerns of the parties in the Joint Motion pertaining to reasonable foreseeability. The parties noted that in determining whether an event is 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 informed consent procedures. At the time of the Joint Motion, a VA examiner had not provided an opinion in this regard. Since then, the October 2020 VA examiner provided such an opinion. The Board, in turn, finds that a reasonable health care provider, seeking to obtain informed consent, would have disclosed the possibility of a ventral hernia as a reasonably foreseeable risk of the Veteran's operation. As discussed, the lack of documentation of a particular discussion in this regard does not defeat a finding that informed consent was obtained. In sum, the preponderance of the evidence is against the Veteran's claim. In reaching this decision, the Board has considered the lay evidence. However, the Veteran is not competent to opine on such medically complex matters as the reasonable foreseeability of particular consequences of coronary artery bypass grafting. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Accordingly, any statements in this regard are beyond his lay competence are not probative in substantiating the claim. The benefit-of-the-doubt rule does not apply, and entitlement to compensation under 38 U.S.C. § 1151 for the development of a ventral hernia as a result of coronary artery bypass grafting by the VA in October 2007 is denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.