Citation Nr: 21003878 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 19-16 903 DATE: January 25, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for injury to the left median nerve (claimed as radial nerve), hereinafter injury to the left median nerve, is denied. FINDING OF FACT The Veteran’s residuals of dissection to expose the left brachial artery and the resulting complication involving the left median nerve was not the result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault as a result of VA treatment, nor was it the result of an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 for injury to left median nerve have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1953 to November 1954. The Veteran was scheduled for a Board hearing in August 2020. However, he withdrew his hearing request in July 2020. As an initial matter, the Board notes that the only issue listed in the Veteran’s January 2017 notice of disagreement (NOD) included the claim for entitlement to compensation under 38 U.S.C. § 1151 for injury to left median nerve. The January 2017 NOD is silent for disagreement regarding any of the other issues addressed in the September 2016 rating decision, to include service connection for gastroesophageal reflux disorder, sensorineural hearing loss, and tinnitus. After the April 2016 statement of the case (SOC) addressing the Veteran’s claim for compensation under 38 U.S.C. § 1151 was issued, the Veteran timely submitted a May 2019 VA Form 9 and indicated that he wished to appeal issues that were not included in his January 2017 NOD and had not been addressed in the April 2016 SOC, including entitlement to service connection for sensorineural hearing loss, tinnitus, gastroesophageal reflux disorder, and abdominal aortic aneurysm (claimed as back aneurysm) associated with arteriovenous aneurism, left femoral vessel. However, as the Veteran did not express disagreement with the aforementioned issues in the January 2017 NOD, the Board does not have jurisdiction to address the issues raised in the May 2019 VA Form 9, to include entitlement to service connection for sensorineural hearing loss, tinnitus, gastroesophageal reflux disorder, and abdominal aortic aneurysm (claimed as back aneurysm) associated with arteriovenous aneurism, left femoral vessel. Accordingly, the Board only has jurisdiction to address the issue of entitlement to compensation under 38 U.S.C. § 1151 for injury to left median nerve. Entitlement to compensation under 38 U.S.C. § 1151. The record shows that the Veteran underwent surgery in November 2010 for an aortic aneurysm repair with a stent graft and repair of common iliac aneurysm with snorkel procedure with exposure of bilateral femoral arteries as well as the brachial artery for delivery of endoprosthesis. During the procedure, the Veteran sustained injury to his left median nerve. The Veteran now seeks compensation for his residuals from the surgery under the provisions of 38 U.S.C. § 1151. [The Board notes parenthetically that while the Veteran has contended the surgery, which is at issue in this case, took place in December 2011, his treatment records indicate the initial surgery requiring left arm access took place in November 2010.] Under 38 U.S.C. § 1151, compensation shall be awarded for a qualifying additional disability or death of a veteran in the same manner as if the additional disability or death were service connected. Such is considered a qualifying additional disability or death under the law if it is not the result of the veteran’s own willful misconduct and the disability or death was caused by VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability or death was: 1) 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 2) an event not reasonably foreseeable. Id.; 38 C.F.R. § 3.361. To establish causation, the evidence must show that the VA medical treatment 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 does not establish cause. 38 C.F.R. § 3.361(c)(1). Medical treatment cannot cause the continuance or natural progress of a disease or injury for which the 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). 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. 38 C.F.R. § 3.361(d). In addition to causation, it must also be shown that (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) that VA furnished the hospital care, medical or surgical treatment, or examination without the informed consent of the veteran or, in appropriate cases, the informed consent of his or her representative. 38 C.F.R. § 3.361(d)(1). Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32, which are discussed below. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a 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 in each claim based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). 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. Id. 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. Id. Compensation under section 1151 can also be established if additional disability was incurred, in pertinent part, due to VA care furnished without the Veteran’s informed consent. 38 C.F.R. § 3.361(d)(1). VA regulation defines informed consent as follows: Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient’s surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c). The informed consent process must be appropriately documented in the medical record. 38 C.F.R. § 17.32(d). After a review of all the evidence under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to compensation under 38 U.S.C. § 1151 for injury to the left median nerve. The Veteran’s VA treatment records show that in June 2010, a computerized tomography (CT) scan indicated that he had an abdominal aortic aneurysm (AAA) that had increased in size to 5.4 centimeters (cm). In November 2010, a VA surgeon discussed the options available to the Veteran, and the VA surgeon noted that a coil embolization of the left hypogastric artery versus the snorkel technique would be used to preserve the internal iliac flow. The risks and benefits of the procedure were explained to the Veteran, including the need for secondary interventions, as well as complications including wound problems, neuropathy, bleeding, infection, limb loss, and systemic complications. The VA surgeon drew images to assist the patient in understanding the procedure. Written informed consent was obtained, which included a note that in most cases, the catheter that is used to inject the special x-ray dye enters the arterial system through an artery in the groin, or occasionally in the upper arm. The Veteran subsequently underwent an aortic aneurysm repair with a stent graft and repair of common iliac aneurysm with snorkel procedure. The VA surgeon noted that exposure of bilateral femoral arteries as well as the brachial artery for delivery of endoprosthesis was required. The VA surgeon noted that the procedure was uneventful, and the Veteran was discharged the following day. In December 2010, the Veteran was seen for follow-up treatment after the stent graft procedure. The Veteran reported numbness since the procedure. In March 2011, the Veteran sought treatment for paresthesias in the distribution of his median nerve, as well as claudication. A computed tomography angiography (CTA) was ordered to ensure that the aneurysm had not grown, as well as to identify the Veteran’s anatomy. It was noted that the Veteran would likely need a superficial femoral artery (SFA) cutdown with a left external iliac artery (EIA) stent versus a right to left femoral-femoral bypass. The April 2011 CTA showed an occluded left external iliac artery with reconstitution of the proximal to mid SFA. A May 2011 VA treatment note indicated that the Veteran was to be scheduled for a left external iliac stent with mechanical thrombectomy using a trellis device with a possible femoral-femoral bypass. In July 2011, the VA surgeon noted that the Veteran had an occluded left external iliac artery, which was likely due to the poor outflow, as the Veteran had a previous gunshot wound with injury to the external iliac artery or due to stent compression. The VA surgeon discussed various options in terms of continued medical management, re-stenting the left external iliac artery, and a femoral-femoral bypass. The VA surgeon noted that the Veteran and the Veteran’s spouse understood the various options, as well as the risks and benefits, and they wished to proceed with possible stent placement in the iliac artery or a femoral-femoral bypass. After informed consent was obtained, the Veteran underwent a right to left femoral-femoral bypass. In December 2011, the Veteran reported neuropathic symptoms in his left hand since the November 2010 surgery, and in April 2012, he was diagnosed with proximal median neuropathy of the left arm. The Veteran subsequently experienced an endoleak from his left hypogastric artery in April 2014 and underwent an iliac stent replacement through the brachial artery in May 2014 . He continued treatment for his left proximal median neuropathy through February 2016. In a December 2015 correspondence, the Veteran reported that the reasons that the VA surgeon went through the upper arm instead of the groin were not explained to him, as he was already under the anesthesia given for the surgery. The Veteran reported that his left median nerve injury had not improved since his surgery, which he stated took place in December 2011. He further reported that his hand and fingers were extremely sensitive to the cold. The Veteran reported that it was explained to him that he could have nerves deaden but that he would then lose feeling in his hand or losing control or use of the hand. He argued that this was not a viable measure he was willing to take or risk. In June 2016, a medical opinion was obtained from a VA chief of surgery. After reviewing the file, the VA chief of surgery stated that the Veteran had sustained a left median nerve injury during dissection to expose the left brachial artery, and that the left brachial artery was used for insertion of an endograft to treat an AAA. The VA chief of surgery noted that the left brachial was chosen as the access vessel because of a scar in the vicinity of the left femoral artery due to remote repair of a left arteriovenous (AV) fistula. The VA chief of surgery noted that the handling of the median nerve along with a post-operative hematoma resulted in nerve injury. The VA chief of surgery found that the left brachial artery was a reasonable and proper choice in this case, and handling of the median nerve was a necessary part of the procedure, with post-operative hematoma being a frequent occurrence. The VA chief of surgery concluded that the medical personnel rendered proper care to the Veteran and that they were not guilty of any fault, misjudgment, or negligence. In a January 2017 correspondence, the Veteran contended that his current left arm condition was due to a surgical error during repair to his AAA. The Veteran reported that there was a need to insert a stent in the vein due to what had originally been noted to be an aneurism but was later reportedly determined to be within an arterial venous fistula. The Veteran reported that the physician explained the issues and, in the document signed before surgery, noted that there might be complications that might require further surgery. The Veteran reported that after surgery to put in the stent, it was explained to him that the physician could not go into the vein where it had originally been intended, and instead went into the vein in the armpit, or axilla, where a nerve had been damaged. The Veteran reported that he had been referred to a neurologist for further treatment. Upon review of all the evidence of record, lay and medical, the Board has accorded great probative weight to the June 2016 medical opinion, which has clear conclusions and supporting data, as well as adequate medical explanations. There is no contrary medical opinion evidence of record. For these reasons, the Board finds that residuals of dissection to expose the left brachial artery and the resulting complication involving the left median nerve was not the result of carelessness, negligence, lack of proper skill, error in judgment or other instance of fault on the part of VA, nor was it due to an event not reasonably foreseeable, and thus, does not constitute a qualifying additional disability under 38 U.S.C. § 1151. Furthermore, the evidence does not indicate that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. Regarding the Veteran’s contention that he was not informed that access to the femoral artery might need to might be through the upper arm instead of the groin and potential surgical complication included neuropathy, VA treatment records indicate that the surgical treatment was rendered with the Veteran’s informed consent. The Board further notes that by his own admission, the Veteran reported that the physician explained the issues, risks, and benefits, and that written informed consent had been obtained prior to the procedure. See January 2017 correspondence. VA treatment records also show that the Veteran was informed prior to the procedure that access to the artery might be through the upper arm instead of the groin and potential surgical complication included neuropathy. The Board acknowledges the Veteran’s assertions that the residuals from his dissection to expose the left brachial artery and the resulting complication involving the left median nerve were due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. However, while the Veteran is competent to report symptoms and the onset of those symptoms, he is not competent as a layperson to opine that he incurred additional disability because of VA’s carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, or that his additional disability was not a reasonably foreseeable risk. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining that a veteran is competent to provide a diagnosis of a simple conditions such as a broken leg, but not competent to provide evidence as to more complex medical questions). (Continued on the next page)   Given the foregoing, the claim of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for injury to left median nerve must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Griffin, 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.