Citation Nr: 21063230 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 08-24 105 DATE: October 13, 2021 ORDER Compensation under 38 U.S.C. § 1151 for additional disability of the lung, including pneumothorax and pleural effusion, as the result of VA medical and surgical treatment is denied. FINDING OF FACT VA medical and surgical treatment did not cause an additional disability of the lung, including pneumothorax and pleural effusion. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 for additional disability of the lung, including pneumothorax and pleural effusion, as a result of VA medical and surgical treatment are not met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1975 to February 1976 and from May 1978 to July 1978. The Veteran died in July 2015, and the Appellant has been substituted in this claim as the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Agency of Original Jurisdiction (AOJ) that denied the claim for compensation under 38 U.S.C. § 1151. In July 2010, the Veteran requested the opportunity to participate in a hearing before the Board. The Veteran failed to report for his scheduled Board hearing in September 2010, Before his death, the Veteran did not request that the Board reschedule this hearing, and the Appellant has not requested a hearing before the Board. Under the circumstances, the Board considers the request for a hearing to have been withdrawn. This matter was most recently before the Board in October 2020, when it remanded the Appellant's claim in order to attempt to verify the employment status of the clinician who provided the Veteran's surgical treatment and to obtain an additional etiological opinion. The AOJ undertook all reasonable efforts to verify the clinician's employment status, and an additional medical opinion was provided in June 2021. As such, the Board finds that the AOJ has substantially complied with its October 2020 remand directives, and it will proceed to a decision. Compensation Under 38 U.S.C. § 1151 The Appellant contends that the Veteran suffered from an additional disability of the lung, including pneumothorax and pleural effusion, as a result of a surgical procedure that he underwent in August 2007. Compensation may be paid for a qualifying additional disability or qualifying death, not the result of the veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished to the veteran when 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 VA in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. 38 U.S.C. § 1151. To determine whether additional disability exists, the Veteran's condition immediately prior to the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based is compared to his condition after such care, treatment, examination, services, or program has been completed. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability. 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). 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 progress. 38 C.F.R. § 3.361(c)(2). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). 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, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability; and (i) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (ii) that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran'sor, in appropriate cases, the Veteran's representative'sinformed consent. 38 C.F.R. §§ 3.361(c), (d)(1). Turning to the facts in this case, in April 2007, a private clinician diagnosed the Veteran with a chronic ascending aortic dissection following the Veteran's complaints of hypertension and pain in the chest, abdomen, and back. A substance abuse program at a VA Medical Center (VAMC) referred the Veteran to a VAMC cardiac surgery consultation in July 2007. In a July 2007 cardiac record, the Veteran was instructed to return in one month in order to schedule his surgery with Dr. H.G.T., the section chief of cardiothoracic surgery at the VAMC. A July 2007 CT scan showed a dilated aorta with a dissection flap, and the Veteran was referred for surgery. An informed consent form dated August 6, 2007, indicates that the Veteran had been informed as to the nature and purpose of the proposed surgery, the risks involved in such procedure, and the possibility of complications associated with such procedure. On August 6, 2007, Dr. H.G.T. performed a surgical replacement of the ascending aorta and aortic arch on the Veteran at the University of Arkansas for Medical Sciences (UAMS). The Veteran "did well" during his postoperative hospital treatment, and he was discharged from the hospital on August 10, 2007. The Veteran was directed to follow up with Dr. H.G.T. at the VA cardiothoracic surgery clinic in two to four weeks. On August 14, 2007, the Veteran sought treatment from a VAMC for symptoms of constipation following his surgery. An August 14, 2007, x-ray of the Veteran's chest showed a moderate degree of right pneumothorax and small right pleural fluid collection, and a chest tube was inserted to drain such fluid. An August 15, 2007, record noted that the Veteran had no complaints and was breathing easier since the placement of the chest tube. The Veteran was discharged in stable condition on August 18, 2007. On August 22, 2007, a clinician noted that the Veteran had been asymptomatic following his discharge, and his chest incision was healing well. An August 24, 2007, chest x-ray indicated that the right pneumothorax and effusion had resolved. The Veteran filed his claim in August 2008, at which time he suggested that he had not been informed that the August 2007 surgery could result in a postoperative pneumothorax and pleural effusion. In December 2009, an examiner opined that it was unlikely that the Veteran's pneumothorax was due to negligence, carelessness, or error on the part of VA clinicians. The examiner discussed the Veteran's pre- and post-surgical medical history, and noted that a pneumothorax and pleural effusion "would not be an expected complication of [the Veteran's August 2007 surgery] and would probably. . . not have been disclosed to the patient as part of the consent form. With that said, the examiner found that the development of these complications did not necessarily suggest that VA's treatment had been negligent. The examiner noted that the Veteran had an uneventful postoperative course after his surgery without evidence of pneumothorax at the time of his discharge from the hospital. Had the Veteran indeed suffered a lung injury at the time of the August 6, 2007, the examiner found that such injury would have progressed and caused significant symptoms by the time of the Veteran's August 10, 2007, discharge from the hospital. While the examiner indicated that the cause of the pneumothorax was unclear, the examiner indicated that it could have been related to the rupture of a small bleb on the surface of the lung, which was not noted on routine chest x-rays. In June 2020, a VA examiner opined that the Veteran did not suffer from additional disability following the August 6, 2007, surgery. The examiner found that the Veteran had no chronic residuals associated with the pneumothorax and pleural effusion. Instead, the examiner stated that the Veteran developed an acute, short-lived pneumothorax and pleural effusion that resolved with appropriate treatment from a VAMC. More specifically, the examiner noted that the Veteran's right pleural effusion resolved completely during his hospitalization at a VAMC from August 14, 2007, to August 19, 2007. The Veteran's right pneumothorax resolved with the August 17, 2007, insertion of a chest tube, recurred to a minimal degree, and then resolved completely by August 23, 2007, with no recurrence or pulmonary sequelae. The Board notes that the June 2020 examiner additionally reasoned that VA treatment did not result in any complications because the August 6, 2007, surgery was not performed at a VAMC. This aspect of the opinion is given no probative value. The weight of the evidence shows that Dr. H.G.T. was acting in his capacity as a VA employee when he ordered and performed the August 2007 surgery, though the procedure itself occurred at UAMS rather than a VAMC. Having found that the Veteran did not suffer from an additional disability, the June 2020 examiner additionally opined that it was unlikely that the Veteran's pneumothorax was due to negligence, carelessness, or error on VA's part. The examiner noted that VA appropriately evaluated and treated the Veteran's right pneumothorax and right pleural effusion on August 14, 2007, the Veteran had good resolution of his symptoms by August 19, 2007, and the Veteran had complete resolution of his symptoms by August 23, 2007. The examiner similarly found that the Veteran did not suffer from additional disability caused by an event not reasonably foreseeable. The examiner stated that pneumothorax and pleural effusion are known and common risks of chest cavity surgical procedures, including the August 6, 2007, surgical replacement of the ascending aorta and aortic arch. As known risks of such a procedure, the examiner indicated that the risks of pneumothorax and pleural effusion would have been disclosed to the Veteran before his surgery. In June 2021, a VA examiner indicated that radiographic testing showed that most patients developed pleural effusions immediately after the sort of surgical procedure that the Veteran underwent. The examiner further observed, with reference to the medical literature, that between 10 and 40 percent of patients develop pleural effusions 2 to 3 weeks after surgery secondary to postpericardiotomy syndrome. The examiner noted that while some effusions, such as a hemothorax, required drainage and further intervention, most effusions required no specific treatment and resolved over time. The examiner noted that radiographic imaging from April 18, 2007, showed haziness at the left lung base partially obscuring the left hemidiaphragm, which could represent infiltrates or atelectatic changes suggesting that the Veteran already had a respiratory problem before his surgery. The examiner additionally opined that it was unlikely that the Veteran's pneumothorax was due to negligence, carelessness, or error on VA's part. The examiner noted that the surgical repair of an ascending aortic aneurysm was performed only by trained healthcare personnel, and the medical evidence does not support a finding of a complication immediately following the Veteran's surgery. The examiner similarly found that the Veteran did not suffer from additional disability caused by an event not reasonably foreseeable. The examiner noted that mild pneumothorax and effusions are common complications of thoracic or heart surgery. The examiner stated that such complications would have been routinely discussed with the Veteran before obtaining the Veteran's informed consent. The examiner indicated that the right chest tube was placed as soon as the condition was known to prevent further complications, and the pneumothorax resolved over a week to 10 days. The examiner found that the record did not support a finding of failure on VA's part to timely diagnose or properly treat the claimed disease or disability allowing the disease or disability to continue to progress. Turning to a review of this evidence, as an initial matter, in February 2018 and October 2020, the Board remanded the Appellant's claim, in part, to determine whether Dr. H.G.T. was indeed acting as a VA employee at the time he performed the Veteran's August 6, 2007, cardiothoracic surgery. The Board finds that the weight of the evidence supports a finding that Dr. H.G.T. was indeed a VA employee and acting in his capacity as such an employee when he performed the August 6, 2007, surgery. The medical evidence demonstrates that Dr. H.G.T. was the section chief of cardiothoracic surgery at the VAMC where the Veteran received cardiac care, and the Veteran's VAMC records show that Dr. H.G.T. ordered the Veteran to undergo a surgical replacement of the ascending aorta and aortic arch. While Dr. H.G.T. elected to perform the Veteran's August 6, 2007, surgery at UAMS rather than at a VAMC, the weight of the evidence indicates that he performed such surgery in his capacity as a VA employee. Having determined that a VA employee performed the Veteran's surgery, the Board will next determine whether the Veteran suffered additional disability following the August 2007 surgery. The weight of the evidence supports a finding that the Veteran indeed suffered an additional disability following his August 6, 2007, surgical procedure because the Veteran was assessed with a right pneumothorax and pleural effusion shortly after undergoing such procedure. Consistent with this finding, in June 2021, a VA examiner indicated that the Veteran indeed had suffered additional disability in the form of pneumothorax and pleural effusions. With that said, in June 2020, an examiner found that the Veteran did not, in fact, suffer from an additional disability following the August 2007 surgery because the Veteran's post-surgical pneumothorax and pleural effusion were short-lived and resolved with appropriate treatment. With both of these opinions entitled to approximately equal probative value, the Board affords the Veteran with the benefit of the doubt and finds, consistent with the conclusion of the June 2021 examiner, that he suffered from additional disability following his August 2007 surgery. With an additional disability established, the next question is whether VA's medical treatment caused such disability. The Board finds that the weight of the evidence is against such a finding. In December 2009, June 2021, and October 2020, examiners opined that the medical evidence did not support a finding that the Veteran's additional disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part. The examiners provided well-reasoned opinions which they supported with citations to the evidence of record and medical literature. With regard to the question of whether the Veteran's pneumothorax and pleural effusion were reasonably foreseeable events, the Board places great probative weight in the opinions of the June 2020 and June 2021 examiners that such complications were indeed reasonably foreseeable outcomes of the Veteran's August 2007 surgery. The June 2020 and June 2021 examiners provided well-reasoned opinions which they supported with citations to the evidence of record and medical literature. The Board places relatively less probative weight in the finding of the December 2009 examiner that such complications were not reasonably foreseeable outcomes because the examiner did not explain this observation or provide evidence in support of such assertion. The Appellant argues that the Veteran was not informed of the possible complications, including pneumothorax and pleural effusion, associated with his August 2007 surgery. However, the record contains signed informed consent forms relating to both the August 6, 2007, surgical procedure and the VAMC treatment that the Veteran received addressing his pneumothorax and pleural effusion. While the consent forms relating to the August 2007 surgery do not explicitly list pneumothorax and pleural effusion among the risks of such a procedure, the forms broadly state that the Veteran had been informed as to the nature and purpose of the proposed surgery, the risks involved in such procedure, and the possibility of complications associated with such procedure. Furthermore, the June 2020 and June 2021 examiners found it to be likely that the informed consent discussions preceding the signing of these forms would have discussed complications such as pneumothorax and pleural effusion, because they are common risks of a thoracic surgery. The Board thus finds that the weight of the evidence is against a finding that VA performed the August 6, 2007, surgery on the Veteran without his informed consent. The evidence in favor of a VA employee having caused the Veteran's additional disability consists exclusively of lay statements from the Veteran and his representative. The Veteran is competent to report symptoms such as thoracic pain because such symptoms are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the issue in this case is not whether the Veteran experienced a pneumothorax and pleural effusion, but rather the cause of such symptoms. Assessing the cause of such symptoms is a complex medical question because it involves the inner workings of the cardiothoracic symptom, which is something that is not readily observable to the layperson, but instead requires the use of sophisticated medical training to diagnose and analyze. The Board is sympathetic to the Appellant's claim that the Veteran suffered from additional disability as the result of his August 6, 2007, surgery. When, however, the Board closely examines the medical evidence of record, it finds that the weight of the evidence is against a finding that VA treatment caused the Veteran's lung symptoms, including pneumothorax and pleural effusion. In sum, the evidence fails to show that the Veteran has a lung disability, including pneumothorax and pleural effusion, that was caused by VA treatment, and the Appellant's claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.