Citation Nr: 21010451 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 19-15 523 DATE: February 24, 2021 ORDER Compensation under the provisions of 38 U.S.C. § 1151 for tremors is denied. FINDING OF FACT The weight of the competent and probative evidence is against a finding that the Veteran has a qualifying additional disability of tremors as a result of a claimed cardiac arrest or other complication during surgery for benign neoplasm salivary tumor. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 for tremors associated with a claimed cardiac arrest or other complication during surgery for benign neoplasm salivary tumor are not 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 March 1959 to January 1961. The matter is before the Board of Veterans’ Appeals (BOARD) on appeal from a September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900. This matter was remanded for additional development in an August 2019 Board decision. There has been substantial compliance with remand directives and additional remands are not necessary. Benefits for Veterans Disabled by Treatment Under § 1151, when a veteran suffers a qualifying additional disability or death as the result of hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished by VA, compensation will be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 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. 38 C.F.R. § 3.361(b). A disability is a qualifying additional disability if the disability was not the result of the Veteran’s willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the veteran and, the proximate cause of the disability 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. 38 C.F.R. § 3.361. To establish carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part, it must be shown that the care or treatment in question caused the veteran’s additional disability and the VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or the care or treatment was furnished without the Veteran’s informed consent. 38 C.F.R. § 3.361(d). Whether the proximate cause of a veteran’s additional disability or death was an event not reasonably foreseeable is determined based on what a reasonable health care provider would have foreseen. 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. 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. 38 C.F.R. § 3.361(d)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). 1. Tremors associated with cardiac arrest during surgery for benign neoplasm salivary tumor The Veteran contends that he has an additional disability of tremors as the result of a cardiac arrest he suffered during the removal of a benign salivary gland tumor in December 1998. VA treatment records show that the Veteran underwent a right superficial parotidectomy on December 18, 1998. While in the recovery room, the Veteran developed a hematoma on the surgical wound. The Veteran was taken back to the operating room for wound exploration. The previous wound was re-opened, and a large hematoma was evacuated. A small arterial bleeder was found and ligated. An operation report indicated that the Veteran had good vital signs, no respiratory distress and no evidence of paresis or weakness of the facial nerve. See September 18, 2020, Medical Treatment Record–Government. VA treatment records dated January 3, 2002 through September 5, 2009, reveal no complaints of tremors or history of cardiac arrest. See June 16, 2016, CAPRI. A December 2002 screen for cardiac history notes a history of hypertension, but no history of irregular heartbeat, congestive heart failure, myocardial infarction or angina. VA treatment records uncover conflicting statements from the Veteran regarding the onset of his tremors. VA treatment records reveal that the Veteran’s first compliant of tremors occurred on December 23, 2013. At that time, the Veteran complained about a one to two-year difficulty with gradual worsening of right-hand tremor especially when writing. In March 2014, the Veteran was examined and advised that the mild tremor appeared to be essential type. A neurological consult in June 2014 resulted in a diagnosis of essential tremor as the tremors were noted with action and not at rest. In June 2015, a dopamine active transfer scan (DaTscan) of the brain was normal, ruling out Parkinson’s disease and suggesting essential tremor. During a neurology follow-up in October 2015 the Veteran suggested the cardiac arrest as a factor for his tremors for the first time. In fact, it is the first mention of a cardiac arrest in all the VA treatment records in the claims file which date back to 1998. Similarly, during a November 2015 neurology consult, tremors were noted to have begun two to three years earlier with the Veteran suggesting they may be related to a surgical complication he had years ago. See May 3, 2016, CAPRI. In July 2016, while presenting the question of a nexus between his tremors and claimed cardiac arrest to his neurologist, the Veteran asserted for the first time that the tremors began slowly over time after the cardiac arrest and continued worsening through the years. See July 14, 2016, Medical Treatment Record–Government. The record contains additional lay statements by the Veteran, his wife and daughter. The Veteran’s wife and daughter described the events surrounding the December 1998 salivary gland surgery. According to the wife and daughter, the doctor informed them that after the Veteran started hemorrhaging in the recovery room, the surgeon discovered that an artery had been accidentally severed during the salivary gland procedure. See June 15, 2018, Affidavit; July 14, 2016, Buddy Statement. After the wife and daughter were able to see the Veteran, they assert that his chest was covered with bruises and it seemed that the he had gone into cardiac arrest and had to be revived. Near the end of the lay statements, however, both the wife and daughter admit that no one told them that the Veteran had gone into cardiac arrest or that he had to be revived. In a March 2016 statement, the Veteran stated that he was currently suffering from tremors because of lack of oxygen to the brain. See March 8, 2016, Correspondence. Contrary to the statements from his wife and daughter, the Veteran further asserts that someone informed his daughter that he had to be resuscitated and had gone into cardiac arrest. The Veteran also highlighted the July 5, 2016 correspondence from his neurologist. The neurologist notes that the Veteran’ tremor phenomenology was consistent with essential tumor, but the Veteran stated that his tremors began slowly over time after the cardiac arrest and worsened over the years. The neurologist stated that although tremors are a possibility after cardiac arrest, he couldn’t tell if there is any association with the cardiac arrest the Veteran suffered in the past. The neurologist further stated that the possibility of some relation is raised based on the Veteran’s account of the onset, but there was no objective evidence to support this. See July 14, 2016, Medical Treatment Record, Government. In further support of his claim, the Veteran submitted a 2006 article entitled “Movement Disorders after Resuscitation from Cardiac Arrest.” See June 15, 2018, Correspondence. A Medical Opinion Disability Benefits Questionnaire (DBQ) was completed in August 2016. The examiner opined that the claimed disabilities of a cardiac arrest that is claimed to have happened during the December 1998 surgery and of tremors secondary to cardiac arrest was at least as likely as not caused by or became worse as a result of the VA treatment at issue. August 25, 2016, VA Examination. In support of this opinion, the examiner admitted that it was not known from the medical records present whether the Veteran actually sustained a cardiac arrest, but based on the lay statements of the family members, blood loss from surgery, and inherent risks associated with surgery, that had to be a consideration. The examiner further reasoned that because the Veteran didn’t have these problems prior to the surgery and developed them afterwards, there would be a causal relationship. As it pertains to proximate cause, the examiner opined that the claimed cardiac arrest and tremors secondary to cardiac arrest 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 VA. The examiner further stated that while the cardiac arrest may have been a possibility, there was no way to predict when it would happen or prevent it from happening, noting the standard of care is to inform the Veteran of issues that can occur with the operative procedure and address and problems that arise. The Veteran was afforded an in-person VA examination in December 2019. The examiner opined that it is less likely as not that the Veteran’s tremors are caused or aggravated to any degree by his cardiac arrest and/or other complication from his salivary gland surgery. December 16, 2019, VA Examination. The examiner reasoned that although the medical literature does report accounts of neurological injury including tremors as a complication from cardiac arrest, these complications are immediate and do not have a latency period of 10 to 12 years as seen in the Veteran’s tremors. The examiner further explained that the Veteran’s neurologist diagnosed an essential tremor which is not characteristic of a neurological injury induced type of tremor. With respect to proximate cause, the examiner opined that there was no objective evidence indicating negligence or failure to perform within the standard of care and no objective evidence indicating improper or incomplete consent. The competent and probative evidence is against finding that the Veteran has a qualifying additional disability of tremors as a result of the claimed cardiac arrest or other complication during the December 1998 salivary gland surgery. The 2019 VA examination is deemed credible, competent and highly probative as it is supported by in-person examination, review of relevant medical history, review of lay statements, clinical data and clear rationale. See Nieves-Rodrigues v. Peake, 22 Vet. App. 295 (2008). The 2016 Medical Opinion DBQ is afforded little probative value as the examiner’s opinion was not supported by clinical data or adequate rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (a medical opinion not supported by clinical data or other rationale is purely speculative). There is simply no evidence to corroborate the Veteran’s contention that he sustained cardiac arrest during the December 1998 surgery. Consideration was given to the medical literature and July 2016 neurology note submitted by the Veteran. This information is given little probative value as the medical literature it is not specific to the Veteran and the neurologist does not offer a clear opinion. Consideration has also been given to the contentions and lay statements of the Veteran, his wife and his daughter. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is not competent to offer an opinion as to the etiology of his tremors due to the medical complexity of the matters involved. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462. Similarly, the Veteran’s wife and daughter are competent to describe the events observed through their senses on the day of the salivary gland surgery, but are not competent to diagnose a cardiac arrest or to establish that the Veteran sustained a cardiac arrest during the surgery due to the medical complexity of the matters involved. Id. In light of the foregoing, the preponderance of the evidence is against the Veteran’s claim for compensation pursuant to 38 U.S.C. § 1151. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56; 38 C.F.R. § 3.102. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Monica Ball Jackson, 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.