Citation Nr: 21021190 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 19-23 163 DATE: April 12, 2021 ORDER Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for residuals from heart surgery, to include leg weakness, limping and foot soreness, is denied. Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for residuals of heart surgery, to include aphasia, memory loss and stuttering, is denied. FINDINGS OF FACT There is no competent and probative evidence of the Veteran incurring additional disabilities that were proximately caused by carelessness, negligence, lack of proper skill, or error in judgment on VA’s part during or following the July 2014 heart surgery during which the Veteran had a stroke. CONCLUSIONS OF LAW 1. The criteria for compensation benefits under the provisions of 38 U.S.C.§ 1151 for residuals from heart surgery, to include leg weakness, limping and foot soreness, have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2019). 2. The criteria for compensation benefits under the provisions of 38 U.S.C. § 1151 for residuals of heart surgery, to include aphasia, memory loss and stuttering, have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty in the from January 1957 to January 1961. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision by a VA Regional Office (RO). In his July 2019 VA Form 9, the Veteran requested a Board hearing. However, in January 2020, the Veteran withdrew his request for a Board hearing. 1. Entitlement to compensation benefits, pursuant to the provisions of 38 U.S.C. § 1151 for residuals from heart surgery to include leg weakness, limping and foot soreness 2. Entitlement to compensation benefits under 38 U.S.C. § 1151 for residuals of heart surgery to include aphasia, memory loss and stuttering At issue is whether the Veteran is entitled to compensation benefits under the provisions of 38 U.S.C. § 1151 for the residuals of a heart surgery performed in 2014. Specifically, the Veteran contends that he suffered a stroke during a triple by-pass heart surgery, resulting in aphasia. In addition, the Veteran asserts that the veins taken from his right leg and used in the surgery caused leg weakness and foot pain. The preponderance of the evidence indicates that the Veteran is not entitled to compensation. Under 38 U.S.C. § 1151(a), compensation shall be awarded for a qualifying additional disability or death in the same manner as if such additional disability was service connected. For purposes of this section, a qualifying additional disability is one in which 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 the result of 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 was the result of an event not reasonably foreseeable. Id. To determine whether additional disability exists within the meaning of § 1151, the Veteran's condition immediately prior to the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based is compared to his or her condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. See 38 C.F.R. § 3.361(b). Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. See 38 C.F.R. § 3.361(c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. See 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 proximately caused a Veteran's additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death (see 38 C.F.R. § 3.361(c)) and (i) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or (ii) that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases the Veteran's representative's, informed consent. See 38 C.F.R. § 3.361(d)(1). It is also necessary to show that additional disability actually resulted from such disease, or that an injury or an aggravation of an existing disease or injury was suffered as a result of hospitalization or medical treatment and is not merely coincidental therewith. The mere fact of aggravation, alone, will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(1), (2) (2018). 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. Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner must explain in a language understandable to the patient the nature of a proposed procedure of treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. 38 C.F.R. § 17.32. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise the patient or surrogate if the proposed treatment is novel or unorthodox. The patient or surrogate may withhold or revoke his or her consent at any time. The informed consent process must be appropriately documented in the medical record. 38 C.F.R. § 17.32(d). Minor deviations from the requirements of 38 C.F.R. § 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). Finally, the determination of whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is to be based on what a reasonable health care provider would have foreseen. The event does not have to 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 38 C.F.R. § 3.361(d)(2). 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). Here, the record reflects that the Veteran underwent a consultation by vascular surgery in February 2014, at which time carotid stenosis was found and a left carotid endarterectomy was recommended. The Veteran did not wish to have the endarterectomy, but it is documented that he was willing to have a stent placement. The records note that the increased risks were explained with this procedure, to include risk of stroke. Further testing revealed that the Veteran had cardiac disease which required immediate intervention. As a result, he underwent a coronary artery bypass graft in April 2014. Records noted that once again, the risks associated were discussed. Veins were harvested from the Veteran’s lower extremities, and the surgery and immediate post-operative period were without complication. Stent placement was performed in July 2014 during which the Veteran suffered a stroke. Neurologists were consulted and additional steps were taken with an embolectomy and medications, with noted improvements. The records further note several specialists were consulted and involved in the Veteran’s post-stroke care, with gradual progress and improvement. However, problems with “word finding” and aphasia persisted. In November 2017, a VA examination was conducted in order to determine if the claimed conditions were caused by or became worse because of the VA treatment at issue; if the conditions resulted from the attending VA personnel’s failure to follow the appropriate standard of care; if the additional conditions resulted from an event that could not have been reasonably foreseen by a reasonable healthcare provider; and/or if 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 opined that the Veteran’s conditions “did not become worse due to VA treatment at issue, nor resulted from the attending VA personnel's failure to follow the appropriate standard of care, nor resulted from an event that could not have reasonable been foreseen by a reasonable healthcare provider, and/or failure on the part of VA to timely diagnosed and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress." The examiner explained that the Veteran’s medical records showed no deviation from appropriate standard of care in either the bypass or the carotid artery stenting. Medical records further indicated that the Veteran’s foot soreness and leg weakness were associated with diabetes with peripheral neuropathy, and not the vein harvesting used for heart surgery. To the extent that the harvesting of the vein resulted in impaired venous return from the lower extremities with edema and venous stasis changes around the ankles, the examiner explained that this is common after such procedures and there is no evidence that the Veteran suffered an unusual amount of swelling or venous stasis of the ankles. The examiner further explained that “embolization” or stroke is a common complication of carotid artery stenting and the appropriate protection device was used. Additionally, counseling for the carotid artery procedure specifically stated there is a higher risk of stroke from stenting versus the surgical endarterectomy that the Veteran declined. The examiner also noted that all complications were reported immediately, and appropriate remedial steps were taken. These included an “emergent telephone consultation with Stanford University and [upon] following their recommendations, result[ed] in rapid, but incomplete improvement.” The Board assigns probative weight to the November 2017 VA medical opinion. The examiner reviewed the Veteran's medical history and claims file, and offered a medical opinion backed up by a clear and concise rationale that addressed the pertinent questions at issue. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”). The Board acknowledges the contentions of the Veteran, but finds that the assertions as to causation are too attenuated to constitute probative evidence to support the claim, particularly given that the Veteran has not demonstrated that there was any carelessness, lack of skill, or error in judgment on the part of his VA treating providers. The Veteran is not considered competent to medically attribute his current aphasia and leg weakness to a specific cause or aggravation, as doing so requires medical knowledge and expertise that the Veteran has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Thus, the Board finds the specific, reasoned opinions of the November 2017 VA examiner to be of greater probative weight than the general lay assertions of the Veteran. Additionally, the Veteran has not provided any evidence demonstrating that his claimed conditions are the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA medical personnel, or an event not reasonably foreseeable. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence establishes that the Veteran did not suffer an additional disabilities due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. Pursuant to 38 C.F.R. § 3.361, this can be shown by establishing that VA treatment proximately caused additional disability, and that (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. Here, there is no evidence to support the Veteran’s contentions. As discussed in detail above, the increased risks, to include the risk of stroke, were discussed with the Veteran prior to the surgery, for which informed consent was obtained. The evidence reflects that there was no deviation from the appropriate standard of care, the appropriate protection device was used during the surgery, complications were reported immediate, and appropriate remedial steps were taken. Furthermore, the November 2017 VA examiner indicated that the Veteran’s foot soreness and leg weakness were associated with diabetes with peripheral neuropathy, and not the vein harvesting used for heart surgery. In short, the weight of the evidence does not indicate that the Veteran incurred additional disability characterized by leg weakness, limping and foot soreness as a result of VA treatment, and there is no evidence that the stroke during surgery was the result of the Veteran's treating physicians being careless or negligent during the Veteran's care. Thus, the Veteran’s current residuals of his stroke during heart surgery, to aphasia, memory loss and stuttering, were not the result of the Veteran's treating physicians being careless or negligent, lacking proper skill, or erring in judgment during the Veteran's care. Accordingly, upon consideration of the foregoing, the Board finds that the weight of the evidence does not establish that the Veteran suffered any additional disability due to any negligence or fault of VA. As the preponderance of the evidence is against the claim for compensation benefits pursuant to 38 U.S.C. § 1151, the benefit-of-the-doubt rule is does not apply, and the claim must be denied. Megan R. Thomas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.