Citation Nr: 21023052 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 19-31 378 DATE: April 20, 2021 ORDER Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a heart attack claimed to be due to treatment occurring at a VA facility is denied. FINDING OF FACT The Veteran’s heart attack status post right ankle fusion surgery did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical treatment. CONCLUSION OF LAW The criteria for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for a heart attack are not met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1962 to August 1966. This issue comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). This claim was recently remanded in August 2020 for additional development, which was accomplished in January 2021. A review of the record shows substantial compliance with the Board’s prior remand; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). Claim for compensation under 38 U.S.C. § 1151 The Veteran seeks entitlement to compensation pursuant to 38 U.S.C. § 1151 for a heart attack experienced during scheduled ankle surgery. Specifically, he asserts that faulty VA care led unnecessarily to a heart attack during the surgery. He asserts that he had a preexisting heart disability and that if a cardiac assessment was conducted during his pre-operation preparation for his right ankle fusion surgery, it would have revealed significant cardiac issues and would have led to a postponement of his ankle surgery. In addition, he asserts that that his anticoagulation was mismanaged prior to surgery and that if he received pre-operative short-active anticoagulant, he would not have experienced a heart attack. His claim for compensation was received by VA in September 2017. Law and regulations In order to warrant compensation under 38 U.S.C. § 1151, there must be a qualifying additional disability which was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a VA (Department) employee or in a Department facility as defined in 38 U.S.C. § 1701 (3)(A), and the proximate cause of the additional disability or death was (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (b) an event not reasonably foreseeable. 38 U.S.C. § 1151; see also 38 C.F.R. § 3.361. Further, in order for a disability to qualify for compensation under 38 U.S.C. § 1151, the disability must not have been the result of the veteran's willful misconduct. From the plain language of the statute, it is clear that to establish entitlement to Section 1151 benefits, these three (3) factors must be shown: (1) additional disability; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. In determining whether a veteran has additional disability, VA compares his condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to his condition after such care or treatment. 38 C.F.R. § 3.361 (b). 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 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). Evidence and analysis The evidence in this matter consists of the Veteran’s lay assertions, VA treatment records, and a March 2018 VA examination report and opinion. The VA treatment records show that in August 2017, the Veteran underwent right ankle fusion surgery. The Veteran signed an informed consent for the procedure on August 18, 2017. It was noted that the risk of using anesthesia included a heart attack. He was given the opportunity to ask questions, and it was noted that he understood and freely consented without coercion. The August 2017 VA operation report notes that informed consent was obtained within the last 30 days, noting the risks, complications, and alternatives to the surgery. The right ankle fusion operation report indicates that the procedure was performed without complications and that the Veteran was subsequently transferred to the intensive care unit (ICU). He complained of chest pain immediately post-surgery that lasted about 30 minutes. However, initial EKG findings shows no acute changes and his troponin was normal. A subsequent evaluation six to eight hours later revealed elevated troponin at 38 and a follow up EKG revealed T-wave inversion anteriorly. See August 2017 private treatment records. He was noted to have experienced a non-ST elevation myocardial infarction (MI). Follow up examination revealed a significant LAD obstruction. The Veteran then underwent coronary artery bypass graft surgery. As such, he experienced an additional disability following the surgery. 38 C.F.R. § 3.361 (b). Nevertheless, merely receiving treatment and having an additional disability is not evidence of causation or of faulty care. 38 C.F.R. § 3.361 (c)(1). The Veteran asserts that he had a preoperative heart disability and that the performance of the right ankle fusion surgery was an error in judgment. He asserts that a September 2012 private radiology report that showed extensive coronary artery calcification. Furthermore, he asserts that VA clinicians did not properly review these records or conduct an extensive cardiac evaluation before his surgery was scheduled. Prior to the surgery, the Veteran obtained preoperative medical and surgical clearance. The August 2017 VA preoperative report noted the Veteran denying chest pain/pressure. In addition, the report noted the Veteran’s hypertension to be well controlled with medication. Interpretation of chest x-ray revealed no acute disease or significant interval change. Overnight oximetry test results were found to be within normal limits. The anesthesiologist noted that general anesthesia was discussed, including the risks associated with it. A VA medical opinion was obtained in March 2018. After a review of the pertinent medical evidence, the examiner gave a negative opinion that the Veteran’s heart attack was the result of (1) VA treatment, (2) VA personnel’s failure to follow an appropriate standard of care, (3) an event that could not reasonably been foreseen by a reasonable healthcare provider and/or (4) a failure on the part of VA to timely diagnose and/or properly treat the claimed disease. The examiner, an expert on pre-operative cardiac risk assessment, noted the Veteran’s contentions that the heart attack experienced with his right ankle fusion surgery could have been prevented if (1) a pre-operative cardiac evaluation was conducted, and (2) if he had received a pre-operative short-active anticoagulant. The examiner also noted the Veteran’s statement that several medical professionals told him that VA mismanaged his treatment; however, no such statements were found in the claims file. The examiner stated that the Veteran underwent a very careful pre-operative cardiac assessment. He noted that the August 2017 preoperative report documented that the Veteran was a low cardiac risk based on the Veteran having no prior heart disease, no family history of heart disease, being cardiac asymptomatic, his cardiac physical exam was normal, and the routine tests (chest radiograph and EKG) were not concerning. The examiner also noted that pre-operative nocturnal oximetry was also done which demonstrated no hypoxia while sleeping. Furthermore, the examiner noted that the anticipated ankle fusion surgery was low risk in terms of no expected hemodynamic fluid changes that could stress the heart. The examiner found that a formal pre-operative cardiac work up with stress test was not indicated in this case. As for the anticoagulation management, the examiner found that it also met the appropriate standard of care. The examiner noted that Coumadin had to be stopped days before surgery for the coumadin affect to be metabolized away in order to reduce the risk of surgery bleeding complications. The examiner also noted that there was no literature support for the Veteran’s allegation that heparin should have been provided while the coumadin was held and that this would have prevented his heart attack. The examiner further noted the use of a heparin window of treatment is to reduce the risk of pulmonary embolus (PE), not reduce the risk of a heart attack. The examiner then stated that it is well-known clinically that a perioperative heart attack in an elderly low cardiac risk patient undergoing a well-indicated non-hemodynamic challenging elective procedure is unlikely but may nevertheless occur. While the examiner was not able to view the informed consent document signed by the Veteran, he stated that it would undoubtedly list heart attack as a potential risk of the ankle surgery. In fact, the document does. The examiner found that the Veteran experienced a heart attack as a result of his right ankle surgery; however, it was an unfortunate but well-recognized complication of the procedure. As such, the heart attack was not the result of an event not reasonably foreseeable. The Board finds the March 2018 opinion probative. The opinion is based upon a review of the medical records, included a discussion of relevant facts, and is supported by a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent the Veteran asserts negligence on the part of VA in furnishing his care, or a pre-existing heart disability, he does not possess the requisite medical expertise to do so. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Lastly, the Veteran asserts that a “generic warning” of complications is not specific enough to be considered informed consent. But as noted earlier, “heart attack” was specifically disclosed and recorded as a potential risk of the right ankle fusion surgery. As such, the August 18, 2017 signed informed consent meets the standards as outlined in 38 C.F.R. § 17.32. In sum, the preponderance of the evidence indicates that the Veteran provided informed consent for the August 2017 surgery, that his heart attack was not the result of an event not reasonably foreseeable, and that the heart attack was not due to faulty VA care. Accordingly, based on the evidence above, including the competent and persuasive opinion provided by the VA examiner as well as the Veteran's signed consent form, the Board finds that the preponderance of the evidence reflects that the Veteran's heart attack status post right ankle fusion surgery is not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical treatment. Accordingly, the claim for compensation pursuant to 38 U.S.C. § 1151 must be denied. C. J. McEntee Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.