Citation Nr: 21067556 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-51 688 DATE: November 4, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for right arm radial artery and nerve damage is denied. FINDING OF FACT The Veteran's right arm radial artery and nerve damage was not proximately caused by VA. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for right arm radial artery and nerve damage have not been met. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2007 to March 2012. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision. The Board remanded the matter in March 2021 to obtain all consent documents associated with the procedure at issue. The Board finds that the remand directives were completed, and further remand is unnecessary. The Veteran seeks compensation under 38 U.S.C. § 1151 for right radial artery and nerve damage related to heart procedures conducted by Tampa VA in April 2013. Under 38 U.S.C. § 1151, compensation may be paid for a qualifying additional disability as if the additional disability or death were service connected. See 38 U.S.C. § 1151. A disability is a qualifying additional disability if the following criteria are met: the disability was not the result of the Veteran's willful misconduct; the disability was caused by hospital care, medical or surgical treatment, or examination furnished to the Veteran in a VA facility; and the proximate cause of the disability 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. See 38 U.S.C. § 1151. In short, to be eligible for compensation under § 1151, the evidence must demonstrate an additional disability, actual causation, and proximate cause. See id.; 38 C.F.R. § 3.361. Here, the Board acknowledges the Veteran incurred an additional disability that was caused by VA treatment. See VA Examination (Sept. 26, 2019). The issue at hand is whether the additional disability was proximately caused by VA. See 38 C.F.R. § 3.361(d). Proximate cause is the action or event that directly caused the disability, as distinguished from a remote contributing cause, and can be shown in two ways. See id. To show 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 or death, actual causation must be shown and: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the Veteran's informed consent. See id. § 3.361(d)(1). Proximate cause can also be shown if an event was not reasonably foreseeable, which is determined based on what a reasonable health care provider would have foreseen. See id. § 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. See 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. See id. The Veteran testified that prior to his surgery he was experiencing blackouts and his VA cardiologist recommended implanting a loop recorder to assess his heart. He reported being told that he would undergo a heart catheterization and would require a small incision in his groin. When he arrived for his procedure, he testified that his treatment providers decided to go through his wrist because "they were in a hurry" due to the impending arrival of "an emergency catheterization multiple catheterization" patient. He testified the procedure "hurt bad" and required strapping his arm down. He further testified that a student implanted the loop recorder, made multiple mistakes during the procedure, and did not use anesthesia because they did not have enough time. The Veteran then testified that he went to the emergency room the next day due to the pain in his arm and he was diagnosed with a blood clot in his wrist. Since the procedure, he contends that he has nerve damage and difficulty using his right arm, which is his dominant arm. The Veteran's medical records confirm that a cardiologist recommended undergoing cardiac catheterization with a loop recorder following multiple episodes of syncope and chest pain with declining functional capacity. On April 19, 2013, the Veteran signed an informed consent document that covered loop recorders and cardiac catheterizations. Specifically, the informed consent noted that cardiac catheterization may be inserted through a blood vessel in the groin, arm, or neck, and the doctor may use more than one catheter to complete testing. The cardiology attending physician also noted that the risks, benefits, and alternatives to the procedure and sedation were explained to and discussed with the Veteran in detail. The cardiology postprocedure note shows that the attending physician completed the catheterization using the right radial for vascular access. The attending wrote that the Veteran "left the cath lab in stable condition," was given medication to prevent blood clots, and, once the medication metabolized, the attending noted that he "will implant loop recorder." A nurse practitioner's note shows that the cath approach and loop recorder sites showed no signs of bleeding, hematoma, or bruit. She also noted that he tolerated the procedure well, was asymptomatic, and had stable vital signs, an unchanged EKG, and no problems at the cath approach/loop recorder sites. The attending physician's followup from April 20, 2013 noted that the Veteran "subsequently had loop recorder with plan for follow up in Tampa." The records do not document that an unqualified provider completed the operation nor that they encountered any difficulties during the procedure. Instead, the records show the operation was successful, without complications, and the Veteran was discharged with relevant instructions. Notably, the attending cardiologist completed the catheterization, which is the procedure at issue. On April 22, 2013, three days after his procedure, he contacted VA and reported skin erythema and swelling around the catheter site. It was recommended that he go to the Orlando clinic or Tampa emergency room, but he declined. On April 23, 2013, he complained that his right forearm was very painful and red, and he was advised to go to his closest hospital. Private emergency room records show that he presented on April 23, 2013 with complaints of right arm pain and swelling that onset the night before. The final impression was thrombosis of the right radial artery from the antecubital fossa to the wrist. It was also noted that the case was discussed with the VA attending cardiologist who conducted the procedure. On April 24, 2013, the Veteran called VA stating he had a fever and right arm pain, and he was instructed to return to the emergency room. He attended several follow-ups with VA in May 2013, and records show that he was given a splint that resulted in near complete resolution of his dysthesias. He was assessed with right radial artery occlusion and resolving radial sensory nerve neuropraxia following radial artery catheterization. Subsequent records show that he was diagnosed with effort related ischemia in the right hand secondary to occluded radial artery. A medical opinion was obtained in September 2016 to assist in assessing the Veteran's claim. The examiner opined that the Veteran's additional disability was less likely than not caused by or a result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. See 38 C.F.R. § 3.361(d)(1). He wrote that the "particular problems of the right radial nerve and right radial artery damage are ones that can arise due to an interventional procedure of the type that the veteran underwent" and that "such a consideration would have been discussed with the veteran at the time he signed his informed consent." The examiner further stated that such an incident can be unavoidable due to the operation and that it occurred "reflected the nature of the procedure" rather than any "carelessness, negligence, lack of skill, or similar incidence of fault" by VA personnel. Regarding the second criterion for demonstrating proximate cause, the examiner wrote that the additional disability was "less likely than not . . . caused by, or as a result of an event that could have reasonably been foreseen by a reasonable healthcare provider." The regulation clarifies 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." 38 C.F.R. § 3.361(d)(2). It is clear here that the examiner's opinion, overall, does not support that an event not reasonably foreseeable led to the additional disability. The examiner wrote that "while these injuries may have been possible, there was no way to predict when it would have happened or [prevent] it from happening" and that "the standard of medical care is such that the veteran is informed of the possible issues that can occur with the operative procedure... [which] did occur." The examiner additionally noted elsewhere that the "particular problems of the right radial nerve and right radial artery damage are ones that can arise due to an interventional procedure of the type that the veteran underwent" and that they "can be an unintentional and often unavoidable part of the operation." In short, the examiner wrote that the injury was a common byproduct of cardiac catheterization and one that a reasonable healthcare provider would have foreseen and discussed prior to the procedure. The Board finds a clarification is not necessary because the examiner provided sufficient detail upon which to base this conclusion. Accordingly, the Board gave little weight to the examiner's opinion statement, which merely restated the posed question, and afforded more weight to the rationale supporting the opinion and throughout the medical report. Overall, the Board finds that the medical opinion is highly probative, despite this contradiction, because the examiner relied on the contemporaneous medical records and provided thorough rationales. After considering the evidence, to include the Veteran's testimony, the September 2016 medical opinion, and the VA medical records, the Board finds that compensation under § 1151 is not warranted for the right radial artery and nerve damage. The competent evidence does not show carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in performing the cardiac catheterization. The Board considered the Veteran's testimony but neither his testimony nor the medical records demonstrate fault. Instead, the records show that the procedure was completed by the attending cardiologist without issue. The records further show the procedure was undertaken with the Veteran's informed consent, which included the potential for catheterization through the arm. Finally, the evidence shows that the Veteran's additional disability was not proximately caused by an event that was not reasonably foreseeable. Specifically, the September 2016 medical examiner indicated that such complications are "often [an] unavoidable" part of the operation. Accordingly, because the evidence does not show that the Veteran's right radial artery and nerve damage was proximately caused by VA, entitlement to compensation under § 1151 is not warranted. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lavan 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.