Citation Nr: 21075470 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 13-21 780 DATE: December 20, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for left lower extremity deep vein thrombosis is DENIED. Entitlement to compensation under 38 U.S.C. § 1151 for right lower extremity deep vein thrombosis is DENIED. FINDINGS OF FACT 1. In October 2016, the Veteran sought and/or received medical assistance from the Central Arkansas Healthcare System. 2. The preponderance of the evidence reflects that the Veteran's bilateral lower extremity deep vein thrombosis was not the result of carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of VA in providing care or treatment. 3. The evidence does not demonstrate that the Veteran's bilateral lower extremity deep vein thrombosis was due to an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for left lower extremity deep vein thrombosis have not been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2020). 2. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for right lower extremity deep vein thrombosis have not been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Air Force from December 1981 to February 1986. 1151 Eligibility A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability "in the same manner as if such additional disability . . . were service-connected" if the additional disability was not the result of willful misconduct and was proximately caused by "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing" that treatment or "an event not reasonably foreseeable." 38 U.S.C. § 1151 (a)(1)(A), (B); 38 C.F.R. § 3.361 (a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151 (a). First, there must be evidence of additional disability, as shown by comparing the veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.361 (b). To determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the Veteran's willful misconduct. 38 U.S.C. § 1151 (a); 38 C.F.R. § 3.301 (c)(3). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the Veteran by VA. 38 C.F.R. § 3.361 (c). 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). In order for additional disability to be compensable under 38 U.S.C. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. 38 C.F.R. § 3.361 (c)(1); Loving v. Nicholson, 19 Vet. App. 96, 99-100 (2005); Sweitzer v. Brown, 5 Vet. App. 503, 505 (1993). That is, the additional disability must have been the result of injury that was part of the natural sequence of cause and effect flowing directly from the actual provision of "hospital care, medical or surgical treatment, or examination" furnished by VA and such additional disability must be directly caused by that VA activity. Loving, 19 Vet. App. at 101. Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be (1) 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 (2) an event that was not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361 (d). Thus, 38 U.S.C. § 1151 contains two causation elements - an additional disability must not only be "caused by" the hospital care or medical treatment received from VA, but also must be "proximate[ly] cause[d]" by the VA's "fault" or an unforeseen "event." 38 U.S.C. § 1151 (a)(1). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1376-77. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to compensation under 38 U.S.C. § 1151 for left lower extremity deep vein thrombosis (DVT) is denied. 2. Entitlement to compensation under 38 U.S.C. § 1151 for right lower extremity deep vein thrombosis (DVT) is denied. In January 2017, the Veteran submitted a VA Form 21-4138. Thereby, the Veteran initiated claims for bilateral lower extremity DVT. Therein, the Veteran contended that VA failed to properly treat back pain in October 2016; and, in so delaying treatment, he developed bilateral DVT that resulted in surgery to remove blood clots. In December 2016, the Veteran's treatment records from the Central Arkansas Healthcare System (HCS) were associated with the claims file. After review, the Board observes that several notations were generated in October 2016 based on the Veteran's back pain at that time. The Veteran was seen in the emergency room for complaints of back pain on October 1, 2016. On October 3, 2016, the Veteran called to ask for a pain management consultation. On October 7, 2016, a neurosurgery nurse informed the Veteran he would have to go through his primary care provider in order to receive a pain medication stronger than Tylenol. On October 8, 2016, the VAMC called the Veteran to find out what type of pain management was being requested, but there was no answer. On October 12, 2016, a pain management consult was requested by VA and a voicemail was left for the Veteran. On October 14, 2016, the Veteran called to say he had completed the x-rays on his back. On October 21, 2016, the Veteran went to the VAMC and requested pain medication. The nurse informed the Veteran that he would not be able to be seen by a physician until after his scheduled appointment. On October 21, 2016, the Veteran was seen in the emergency department for a complaint of back pain. Upon discharge, the Veteran was noted to be stable with a pain level of 8. In May 2018, a medical examiner's opinion was associated with the claims file. Therein, the examiner opined that it was less likely than not that the Veteran's bilateral DVT was caused by or became worse as a result of VA treatment, that additional disability resulted from the attending VA personnel's failure to follow the appropriate standard of care, that additional disability resulted from an event that could have not been reasonably foreseen by a reasonable healthcare provider, or that failure on the part of VA to timely diagnose and/or properly treat the claimed disability allowed the disability to continue or to progress. After review, the Board notes that the examiner considered the Veteran's treatment in 2014 and 2015, but did not address and opine regarding the VA treatment in October 2016. In August 2019, a medical examiner's opinion was associated with the claims file. The examiner opined that, "(i)t is less as likely as not the veterans right LE DVT was caused by or became worse as a result of the VA treatment, additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel or additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress." The examiner noted the Veteran had multiple comorbid conditions which put him at risk for DVT. The examiner opined the Veteran's care met the standard of care and was appropriate and timely. After review, the Board notes that the examiner considered the Veteran's treatment in 2014 and 2015, but did not address and opine regarding the VA treatment in October 2016. In May 2021, the Board addressed the Veteran's 38 U.S.C. § 1151 claims for bilateral lower extremity deep vein thrombosis (DVT). At that time, the Board remanded the claims for additional development, because neither the May 2018 nor the August 2019 examiners addressed the Veteran's VA treatment, or lack of, in October 2016. Both examiners based their discussion of the Veteran's bilateral lower extremity DVT to medical treatment in 2014 and 2015. In July 2021, the Veteran underwent a VA examination that addressed the nature and etiology of artery and vein conditions. The examiner noted diagnoses for bilateral lower extremity DVT. The examiner relayed that, "(t)he veteran has a history of bilateral DVT as noted in the medical records and also had an inferior vena cava filter placed. Because of the history of previous DVT this veteran would be at increased risk of recurrent and continued deep venous thrombosis based on the history of trauma to the lower extremities previously." The examiner relayed that, "(t)here is no evidence to show that additional disability happened as a result of carelessness, negligence, lack of skill or similar incidence of fault on the part of the attending VA personnel." The examiner relayed that, "(t)he veteran was noted to have acute chronic back pain and did call the VA regarding the pain. The veteran complained of back pain initially and did not complain of leg swelling at that time. The leg swelling was noted later and the appropriate workup was performed. Based on the presentation of acute or chronic back pain it is unlikely that any additional disability was caused." The examiner opined that, "(t)here is no evidence to show any further disability as a result of the VA treatment noted in the pertinent records." The examiner relayed that, "(t)he most significant risk of deep venous thrombosis is pulmonary embolism, and this veteran had an inferior vena cava filter placed previously which decreased significantly the risk of DVT. The veteran presented with acute chronic back pain and the common symptoms and presentation of DVT do not include pain in the back. A reasonable healthcare provider would not have foreseen any additional disability based on the presentation of this veteran." Based upon the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to compensation under 38 U.S.C. § 1151 for bilateral lower extremity DVT after medical service at a VA facility in October 2016. In summary, there is no competent medical evidence indicating that the Veteran's bilateral lower extremity DVT was the product of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable. In light of the above, the Board finds that the criteria for entitlement to compensation under the provisions of 38 U.S.C. § 1151 have not been met, and the claims for bilateral lower extremity DVT must be denied. Because the preponderance of the evidence is against these 38 U.S.C. § 1151 claims, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.