Citation Nr: 21013580 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 09-41 930 DATE: March 9, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a right arm disability is denied. REMANDED Entitlement to service connection for a sleep disorder, to include insomnia, including as secondary to service-connected acquired psychiatric disorder, is remanded. FINDINGS OF FACT 1. The Veteran has an additional disability of right arm peripheral neuropathy caused by a PICC line placement performed at a VA facility in September 2003 as a result of being admitted to the VA medical center emergency room for an upper respiratory infection. 2. The Veteran’s additional disability of right arm peripheral neuropathy was not 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. CONCLUSION OF LAW The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for a right arm disability have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.361, 17.32. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from May 1973 to August 1973 and on active duty from January 1975 to February 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from November 2007 and August 2015 rating decisions. In the November 2007 rating decision, the regional office (RO) denied entitlement to compensation for 38U.S.C.§ 1151 for a right arm disability. In the August 2015 rating decision, the RO continued and confirmed the previous denial for service connection for insomnia. In August 2013, the Veteran was scheduled for a Board hearing before a Veterans Law Judge (VLJ); however, the Veteran’s representative canceled the hearing request to reschedule at a later date. Subsequently, in a December 2017 letter, the Veteran attorney canceled the Veteran’s hearing request. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2019). These issues were previously before the Board in January 2016 and January 2019. With respect to the issue decided herein, the Board finds substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The claims for entitlement to service connection for a cervical spine disability and a low back disability were previously remanded by the Board in January 2019 for additional development. During the course of the additional development, the RO granted these claims in a December 2020 rating decision. As such, the grant of these claims is considered a full grant of the benefits sought on appeal, and these issues are no longer before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Compensation under 38 U.S.C. § 1151 for a right arm disability A veteran who suffers a 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); 38 C.F.R. § 3.361; 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 CWT program furnished the veteran by VA. 38 C.F.R. § 3.361(c). 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. 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). The Federal Circuit has held that the causation element of section 1151 is satisfied not only when an injury is “directly” or “actually” caused by the actions of VA employees but also where an injury occurs in a VA facility resulting from VA’s negligence. Viegas, 705 F.3d at 1378. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease of 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). The factual elements necessary to support a claim under section 1151 based on failure to diagnose or treat a preexisting condition may vary with the facts of each case and the nature of the particular injury and cause alleged by the claimant. As a general matter, however, entitlement to benefits based on such claims would ordinarily require a determination that: (1) VA failed to diagnose and/or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the veteran suffered disability or death which probably would have been avoided if proper diagnosis and treatment had been rendered. Vet. Aff. Op. Gen. Couns. Prec. 5-2001 (Feb. 5, 2001); see also Roberson v. Shinseki, 607 F.3d 809, 817 (Fed. Cir. 2010). 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)(2); 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 was the proximate cause of a veteran’s additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran’s additional disability or death; 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, medical or surgical treatment, or examination without the veteran’s informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic procedure or course of treatment. 38 C.F.R. § 17.32(c). Minor deviations from the requirements of § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. 38 C.F.R. § 3.361 (d)(1)(ii). The term “minor deviation” includes substantive as well as technical or procedural errors. McNair v. Shinseki, 25 Vet. App. 98, 106 (2011). The failure to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk. The presumption of regularity does not apply to the scope of the information provided to a patient by a doctor with regard to the risks involved with any particular treatment. Id. at 107. Regarding reasonable foreseeability, whether the proximate cause of a veteran’s additional disability or death was an event not reasonably foreseeable is in each claim to be 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 foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert, supra. In a March 2018 statement, the Veteran asserts that in October 2003 he was admitted to the VA medical center emergency room for an upper respiratory infection, and the treating nurses negligently attempted to place an IV in his arm, which caused a right arm nerve disability. He further reported that he has experienced residuals or right arm symptoms as a result of having had a PICC line inserted into his right arm. Specifically, he experienced numbness and tingling in his right arm and hand where the 2003 PICC line was placed. VA clinical records show that in September 2003, the Veteran was initially admitted to a VA emergency room for pneumonia before developing MRSA septicemia and was put on vancomycin. A September 2003 VA treatment record notes a VA physician indicated the Veteran was dehydrated, and they were unable to find a peripheral vein. The physician indicated that after “a lengthy try and 2 incisions” on the right elbow, he was able to find a vein, “a PICC line was inserted, a small artery was accidentally entered and it was tied, distal pulses were OK after.” Thereafter, a PICC line was successful placed in the right antecubital fossa. He continued his treatment for pneumonia and MRSA septicemia, and in October 2003, a nurse noticed pus coming from his PICC line. He was subsequently transferred to a different VA facility to have the pus drained at the PICC line site of infection. Later that month, he went to a VA facility to seek treatment for his complaints of having had the pus drained from where the PICC line had been placed. The VA treatment provider indicated there was no current infection where the PICC line had been placed. Upon physical examination of the arm, the Veteran’s arm appeared well-healed, except for a scar. No pus, erythema, or edema was observed. In January 2019, the Board remanded the claim to determine whether a right arm disability exists that could have been due to the September 2003 VA treatment, and if so, whether there was medical carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in providing treatment or whether the consequences of the treatment were not reasonably foreseeable. Pursuant to the January 2019 remand, the Veteran was afforded a VA examination in October 2020 for compensation under 38 U.S.C. § 1151 for a right arm disability. He reported ongoing and progressively worsening symptoms of tingling and limited motion of the right arm. The examiner provided a diagnosis of right arm peripheral neuropathy with the year of diagnosis being 2003. In their October 2020 opinion, the examiner found an additional disability had occurred because they found it is at least as likely as not the Veteran’s right arm peripheral neuropathy was caused by the PICC line placement in September 2003. For their rationale, the examiner states it is possible nerve damage could have occurred with the insertion of the peripheral central catheter. While the procedure is considered minimally invasive, they state, it is still an invasive procedure that can sever or irritate the tissue around the nerves. In determining whether compensation is warranted under 38 U.S.C. § 1151, the Board further notes the record shows the Veteran’s additional disability was caused by hospital care or medical or surgical treatment furnished the veteran by VA. However, the examiner determined it is less likely than not the claimed disability of the right arm resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel because a review of the medical record did not indicate carelessness, negligence, lack of skill, or similar incidence of fault. The examiner also determined it is less likely than not the claimed disability of the Veteran’s right arm resulted from an event that could not have been reasonably foreseen by a reasonable healthcare provider because neuropathy is a documented risk of the PICC line insertion procedure. As a result, nerve damage is a foreseeable risk of the PICC line insertion procedure. Per VA policy, an event is considered “not reasonably foreseeable” if it is not the type of risk that would be disclosed as part of the informed consent procedures shown in 38 C.F.R. § 17.32 (2019). Notably, since the Veteran was receiving life-saving emergency treatment at the time of his respiratory infection, the normal informed consent procedures are inapplicable in this instance. Nonetheless, a review of the record from September 2003 shows that consent was given. Medical records note that VA treatment providers requested to place a line, permission was obtained, and the Veteran was informed about the risks associated with infection, bleeding, and a collapsed lung. He signed to consent to treatment, and such was witnessed. Finally, the examiner determined it is less likely than not the claimed disability was due to the failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability by allowing the disease or disability to continue to progress because the examiner found that once nerve damage occurs, it is irreversible. In this case, timing did not affect the development of neuropathy. The nerve damage occurred during the procedure, and nothing could have been done to stop it from occurring because nerve damage, as the examiner states in this case, is irreversible. The Board finds the third element is not met or the proximate cause of the disability was not due to 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 an event that was not reasonably foreseeable. 38 U.S.C. § 1151(a)(2); 38 C.F.R. § 3.361(d). The Board affords the VA examiner’s findings substantial probative value. After reviewing the Veteran’s electronic claims file and VA treatment, the examiner found no evidence of carelessness, negligence, lack of proper skill, or error in judgement by the VA for the Veteran’s claimed right arm disability. The Board notes there is no opinion in the record to the contrary. After a review of all the lay and medical evidence, the Board finds the preponderance of the evidence is against a finding of entitlement to compensation 38 U.S.C. § 1151 for right arm nerve damage. The October 2020 VA medical opinion is supported by explanations based on the examiner’s medical knowledge and review of the Veteran’s record. The Veteran has not submitted any additional medical evidence or opinion from another medical professional indicating that VA was careless, negligent, lacked proper skill, erred in judgment, or had other fault that ultimately resulted in the Veteran’s additional disability from the procedure he had at VA. The Board has no reason to doubt the competency or the veracity of the October 2020 VA medical opinion. The assessment is uncontroverted. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt an independent medical expert’s opinion for its reasons and bases where the expert has fairly considered the material evidence of record). Here, while the examiner found an additional disability that had been caused by hospital care or medical or surgical treatment furnished to the Veteran by VA, the examiner did not find evidence of carelessness, negligence, lack of skill, or similar incidence of fault. The examiner also determined the claimed disability of the right arm resulted from an event that could not have been reasonably foreseen by a reasonable healthcare provider because neuropathy is a documented risk of the PICC line insertion procedure. Under 38 C.F.R. § 3.361(d), the question of whether the proximate cause of a veteran’s additional disability was an event not reasonably foreseeable is to be determined based on what a reasonable health care provider would have foreseen. See also Schertz, supra. In this case, the examiner notes that neuropathy is a documented risk of the PICC line insertion procedure and thus, a foreseeable risk. Though the Veteran is competent to provide lay testimony regarding the symptoms he observed, he does not have the expertise necessary to address the complex medical issue of whether he received inadequate medical care that resulted in right arm nerve damage. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77; Barr, 21 Vet. App. at 307. He is competent to report he had a wound issue after the surgery. However, there is no proof of carelessness, negligence, lack of skill, or similar incidence of fault or an event that could not have been reasonably foreseen by a reasonable healthcare provider. Furthermore, the examiner found timing was not an issue in this case. The Veteran’s own opinion as to these matters is not competent and outweighed by the medical evidence of record. Although the Board is grateful for the Veteran’s Honorable service, and sympathizes with the Veteran for his disability, compensation under 38 U.S.C. § 1151 for a neurologic disorder of the right arm must be denied. In denying the Veteran’s appeal, the Board emphasizes its review of the Veteran’s statements and what happened to him. The Board acknowledges and sympathizes with the ordeal the Veteran has been through because of his right arm condition. However, 38 U.S.C. § 1151 does not provide compensation for reasonably foreseeable complications of procedures to which a veteran has given informed consent, such as is the case here. As such, the preponderance of the evidence is against the claim and the benefit of the doubt provisions are not for application. 38 U.S.C. § 5107(b). REASONS FOR REMAND Service connection for a sleep disorder, to include insomnia and as due to the Veteran’s service-connected acquired psychiatric disorder, is remanded. The Veteran asserts service connection is warranted for a sleep disorder to include as secondary to his service-connected acquired psychiatric disorder. In April 2020, a VA examiner diagnosed the Veteran with obstructive sleep apnea (OSA). Regarding the etiology of the Veteran’s OSA diagnosis, in an April 2020 opinion, the examiner found the condition is less likely than not incurred in or caused by the Veteran’s service. The examiner contributed the Veteran’s OSA to his weight gain and a mild “AHI” reading. The examiner also contributed the Veteran’s complaints of poor sleep to his medications and his onset of right shoulder pain. Regarding secondary service connection, the examiner found it is less likely than not the Veteran’s OSA diagnosis is related to his service-connected acquired psychiatric condition. The examiner notes OSA is a condition caused by obstruction of the upper airway during sleep. The examiner found the Veteran’s BMI caused his OSA and not his acquired psychiatric disorder, and “there is no scientific evidence that PTSD causes Obstructive Sleep Apnea or aggravates OSA.” The Board finds the April 2020 VA opinion insufficient to determine whether secondary service connection is warranted because while the examiner provided an opinion and rationale for causation, the examiner did not provide any rationale for aggravation. The Board notes the Court has held causation and aggravation are independent concepts and should have separate findings and rationales. See Atencio v. O’Rourke, 30 Vet. App. 74 (2018). As such, on remand, the VA examiner must provide separate findings and rationales relating to causation and aggravation. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and any outstanding private medical records identified by the Veteran as pertinent to his claim. 2. The examiner who provided the April 2020 medical opinion, or another appropriate examiner, is asked to provide a supplemental medical opinion regarding the Veteran’s claim for a sleep disorder. The Veteran does not need to be examined, unless the physician determines otherwise. The entire claims file should be made available to and reviewed by the examiner. Based on the examination and review of the record, the examiner is to address the following question: For any sleep disorder diagnosed, to include OSA, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) the disorder was caused (in whole or in part) or aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of its permanence) by the Veteran’s service-connected acquired psychiatric disability. The examiner must provide separate opinions and rationales for secondary cause and secondary aggravation. Atencio, supra. A complete rationale should be provided for any opinion or conclusion expressed. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner determines the questions cannot be resolved without resorting to speculation, then an explanation as to why this is so must be provided. J.N. MOATS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton 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.