Citation Nr: 21009763 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-14 958 DATE: February 23, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for left arm nerve damage during surgery is denied. FINDING OF FACT The medical evidence demonstrates that the Veteran’s left arm nerve damage during surgery was not proximately caused by either (1) an event unforeseeable by a reasonable healthcare provider or (2) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in providing the hospital care or medical or surgical treatment. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for left arm nerve damage during surgery have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to November 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. Entitlement to compensation under 38 U.S.C. § 1151 for left arm nerve damage during surgery left arm nerve cut during surgery is denied. The Veteran has claimed entitlement to compensation under 38 U.S.C. § 1151 contending that he has left arm nerve damage caused by the negligence of VA medical center staff during a surgery in July 2014. Under 38 U.S.C. § 1151, if VA hospitalization or medical or surgical treatment results in additional disability or death that is not the result of the claimant’s own willful misconduct or failure to follow instructions, compensation may be awarded in the same manner as if the additional disability or death were service connected. See 38 C.F.R. § 3.361. To constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. 38 C.F.R. § 3.361(a). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran’s additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or 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). 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 or medical or surgical treatment caused that disability; and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. In evaluating the Veteran’s claim, the Board first must consider whether the evidentiary record shows that he has additional disability that was caused by negligent VA medical treatment. See 38 U.S.C. § 1151(a)(1). Turning to the evidence, a July 2014 VA thoracic surgery note reported that the Veteran underwent coronary artery bypass grafting on July 3, 2014. It was reported that his post-operative course has been complicated by self-extubation and sternal dehiscence. The Veteran underwent sternal debridement and pectoralis flap closure on July 11, 2014 and was extubated on July 25, 2014. The Veteran reported his left hand/forearm strength as well as neuropathic pain have improved. An October 2014 VA medical record reported that the attending physician reviewed with the Veteran, as he stated he had on two previous occasions, that it was very improbable, if not impossible to attribute the nerve injury to direct surgical trauma, but rather that it was more likely caused by positioning in the operating room. The Veteran voiced understanding of this explanation. In March 2017, the Veteran’ representative submitted a statement contending that the Veteran has left arm nerve damage caused by the negligence of VA medical center staff during a surgery in July 2014. At the Veteran’s December 2020 Board hearing, he testified that, during his surgery in July 2014, the VA medical personnel cut a nerve on his left side that impairs his ability to use his left hand. A medical opinion was provided by a VA medical doctor in March 2016. Prior to providing his medical opinions, the doctor provided a summary of the procedures that resulted in the Veteran’s left arm disorder. He explained that, due to blockages found in June 2014, a coronary artery bypass grafting surgery was planned. Because the Veteran was morbidly obese (70 inches tall, 335 pounds), he noted that the thoracic surgeons had the foresight to plan for and execute sternal closure with plating as opposed to the customary wires. Informed consent was obtained for both the coronary artery bypass grafting and the plating, with the risks disclosed and accepted for sternal wound complications. Due to his obesity, after the surgery, the Veteran remained sedated and intubated for a prolonged period. The prolonged intubation was medically necessary due to his respiratory status. His sedation appeared to have been carefully titrated, with appropriate attempts to wean the Veteran from the ventilator, as oversedation increases the risk for pneumonia. The doctor explained that the longer a patient is on a ventilator, the more often and the higher the risk of “bucking the ventilator,” which he noted was an unavoidable situation. The Veteran self extubated on July 8, 2014 and became hypoxic immediately and was re-intubated. On July 11, 2014, the Veteran’s sternum was noted on the exam to be unstable, and a computed tomography scan confirmed the dehiscence of the plate closure. The Veteran was taken back to the operating room where the thoracic surgeons removed the hardware and washed out the mediastinum. The records noted that re-wiring or replating was not possible, so bilateral pectoralis flaps were used for closure. The doctor noted that consent was obtained for both procedures. This second surgery lasted for over 4 hours. The creation of mobile pectoralis flaps necessarily required a great deal of dissection laterally on both sides of the chest. Post-operatively from the second surgery, the Veteran developed a neuropathy in his left upper extremity. The doctor reported that, according to a July 29, 2014 note from Plastic Surgery, the Veteran was experiencing ongoing left upper extremity issues status post debridement sternum. The note indicated that, considering there was multiple nerve/level involvement, the cause was most likely intraoperative hyperabduction of left arm during positioning and “[u]nlikely to be direct injury.” The doctor noted that subsequent electromyography [EMG] results notes showed an abnormal examination: “There is electrodiagnostic evidence of an axonal lesion to the brachial plexus with relative sparing of the upper trunk and the axillary nerve. Possible etiologies include compression or stretch injury in the perioperative period, or less likely an inflammatory autoimmune injury.” The doctor provided the following regarding the possible etiologies found by the August 2014 EMG: Such compression or stretch injuries are unavoidable at times, and in this case, veteran’s body habitus certainly played a role in the risk......not to mention that the need for re-operation was largely caused by respiratory failure secondary to obesity. Also, the use of the sternal plates was due to his obesity. Without the use of, and subsequent failure of, sternal plates, the need for the pectoralis flap surgery would not have existed. The doctor opined that it was less likely than not that the claimed disability of the nerve in the left arm being cut was caused by or became worse as a result of the VA treatment at issue. As rationale, the doctor explained that no nerves were cut and that the prolonged and complicated first post-operative course were due to morbid obesity. He stated the sternal wires were needed due to risk of dehiscence due to obesity. The failure of the plates and need for pectoralis flaps were due to respiratory issues largely due to obesity. The doctor opined that it was less likely than not that the additional disability resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. He explained that there was no evidence of carelessness, negligence, lack of skill, or similar incidence of fault. The doctor opined that it was less likely than not that the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. The doctor explained that positioning and traction injuries occur in some cases, despite best attempts to prevent them. He noted that the second surgery on July 11, 2014 was a four-hour case on a morbidly obese man requiring dissection on both chest walls towards both shoulders. The doctor opined that it was less likely than not that failure on the part of the VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. The examiner explained that the prolonged and complicated first post-operative course were due to morbid obesity. Appropriate attempts were made to wean the Veteran from the ventilator. The Veteran’s sedation was titrated as to not be a risk for pneumonia. An inevitable risk is coughing or bucking the ventilator, which can lead to sternal dehiscence. The neuropathy, once diagnosed, was appropriately consulted and addressed. The failure of the plates and need to pectoralis flaps were due to respiratory issues largely due to obesity. There is no evidence in the record of any instance of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault due to VA’s failure to exercise the degree of care that would be expected of a reasonable health care provider or that the event was not reasonably foreseeable. The most probative evidence of record is the medical opinion obtained from the VA medical professional in March 2016. The examiner reviewed the medical evidence and did not find any evidence of VA carelessness, negligence, lack of proper skill, error in judgment, or lack of treatment caused any additional eye disability. The examiner also concluded that it was less likely than not that the Veteran’s nerve injury resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider. As such, there is no contrary medical opinion in the evidence of record, meaning concluding differently than the VA doctor's opinion that is entirely unfavorable to the claim. A lay person is competent to address etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not competent to give probative opinions on the complex, not just simple, medical issues involved in this appeal. The fact-specific, reasoned opinions of the VA doctor are of greater probative weight than the more general lay assertions of the Veteran and his representative. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). In sum, the preponderance of the evidence of record shows that there is no persuasive evidence of VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. As well, there is no evidence of complications from treatment that were not reasonably foreseeable. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable. Consequently, this claim for compensation under 38 U.S.C. § 1151 compensation must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore, 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.