Citation Nr: 21023782 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-02 717 DATE: April 21, 2021 ORDER Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of sinus surgery, to include numbness around left eye, problems with concentration, sleeping, redness, and itching is denied. FINDING OF FACT The preponderance of the evidence weighs against a finding that the Veteran suffers from a disability that 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 hospital care or medical or surgical treatment; or an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 for residuals of sinus surgery to include numbness around left eye, problems with concentration, sleeping, redness, and itching have not been met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from August 1973 to September 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision of a VA Regional Office (RO). In September 2018, the Board denied the Veteran’s claim, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or the Court). In October 2019, the Court vacated the Board’s decision and remanded the claim for readjudication. In April 2020, the Board remanded the claim for a VA medical opinion. In December 2020, the Board found that the RO had not substantially complied with its remand directives and remanded the case for compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that the RO substantially complied with its December 2020 remand directives, and the Board may now proceed with adjudication. 1. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of sinus surgery to include numbness around left eye, problems with concentration, sleeping, redness, and itching The Veteran asserts that he is entitled to benefits under the provisions of 38 U.S.C. § 1151 for residuals of sinus surgery. VA law provides that, for claims received by VA on or after October 1, 1997, compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if that additional disability or death were service connected. A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran’s willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, and the proximate cause of the disability or death was: (A) 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 (B) an event not reasonably foreseeable. 38 U.S.C. § 1151. To obtain compensation, a claimant must show: (1) a qualifying additional disability, (2) actually caused by the treatment furnished by VA, and (3) a proximate or direct cause that is either a fault on the part of VA or an event not reasonably foreseeable. To establish VA fault, it must be shown that VA failed to exercise the degree of care that would normally be expected of a reasonable health care provider or that VA furnished care without the veteran’s informed consent. 38 U.S.C. § 1151(a); 38 C.F.R. § 3.361(c)(1), (d)(1). 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 the care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b). Claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination must meet the applicable causation requirements, either actual causation or proximate causation for continuance or natural progress due to VA failure to timely diagnose and properly treat a disease or injury. To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination 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). With regard to carelessness or negligence, 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 or medical or surgical treatment 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 or medical or surgical treatment 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)(1). With regard to 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). Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient or the patient’s surrogate of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. 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. 38 C.F.R. § 17.32(c). VA has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. In this case, the Veteran claims that as the result of surgical treatment (specifically, a left frontal sinus trephination) provided to him by a VA employee in a VA facility, he has sustained additional disability consisting of numbness, itching and redness around the left eye as well as problems with concentrating and sleeping. He claims that he is entitled to compensation for that additional disability because the VA employee that provided the above-mentioned surgical treatment was negligent, and the treatment was provided without the Veteran’s informed consent. The Veteran signed two consent forms on March 16, 2009. The earlier consent form listed endoscopic sinusotomy and septoplasty as the possible procedures or alternatives involved. Approximately one hour later, the Veteran signed a second consent form for trephination of the frontal sinus. The Veteran acknowledges that he signed a consent form for the treatment at issue prior to performance of the procedure, but he claims that he was not able to and did not understand the nature of the procedure that he was consenting to nor the risks involved with that procedure. See, e.g., Consent for Treatment/Procedure received January 2014; VA treatment records, Operation Report dated in March 2009. In a January 2012 medical opinion, the VA examiner noted that the side-effects of the operation that the Veteran experiences are very common, and they found no evidence of carelessness, negligence, or lack of proper skill and judgment on the part of VA personnel. During the November 2014 Board hearing, the Veteran testified that he experienced chronic numbness of the left eye and occasional pain after the trephination procedure. He testified that the trephination procedure was never discussed with him until a last-minute decision in the operating room, and he was unaware of the potential side-effects. In support of his claim that he was not able to and did not understand what he was consenting to, the Veteran has submitted a statement from a psychologist in which the psychologist opined that the Veteran suffers from a learning disability that hinders his ability to “absorb information,” including that which he reads. See Learning Disability Evaluation received October 22, 2015. In a January 2016 VA medical opinion, a VA physician opined on the Veteran’s claim. They concluded that it was more likely than not that his forehead numbness was the result of the frontal trephination procedure. It was more likely than not that there was no additional disability resulting from carelessness or lack of skill. It was more likely than not that forehead numbness and the other asserted symptoms were reasonably foreseen as a complication of the procedure. It was more likely than not that a reasonable person would have proceeded with the sinus trephination even if advised of the risk that he could suffer from forehead numbness and other associated symptoms. In an October 2020 VA addendum medical opinion, the VA examiner opined that it was less likely than not that it was negligent of the Veteran’s physicians to proceed with the trephination procedure based on the consent given by the Veteran. The additional disability did not result from carelessness, negligence, or lack of skill or similar incidence by VA personnel. The case was complex, and the examiner found that standard pre-operation consent represented what was anticipated given the complexity of the case. In a February 2021 VA addendum medical opinion, the VA examiner, who reviewed the claims file, noted that in the March 2009 operation report, the Veteran was informed that he would be undergoing endoscopic sinus surgery and advised of the possibility of septoplasty or trephination. The Veteran then consented to the procedure after being advised of these possible procedures and was aware of all risks and benefits. Based on these facts, the examiner opined that informed consent was obtained. The Board acknowledges the Veteran’s arguments that neither he nor a reasonable person would have consented to the left frontal sinus trephination procedure. However, the Board finds that the February 2021 opinion is of greater probative value than the Veteran’s statements, given the examiner’s training and credentials on matters including the propriety and quality of informed consent, and review of the entire claims file (including the evidence of the Veteran’s reported limited abilities). See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board finds the preponderance of the evidence indicates that the Veteran was provided true, informed consent prior to the trephination procedure. The Board acknowledges the Veteran’s statements that he was scared or anxious, cold, and without his hearing aid when he signed the second consent form. Conversely, the medical opinions of record indicate that his VA physicians were not negligent and that his current symptoms were reasonably foreseeable, and the February 2021 opinion clearly indicates, per the Board’s remand instructions, that the Veteran gave informed consent to the frontal trephination procedure. Even considering the Veteran’s circumstances at the time of the consent and his mild learning disability, the Board finds it more likely than not that the consent he gave constituted informed consent. There is no indication in the evidence of record of the Veteran expressing that he was reluctant to consent at the time or that he needed additional information. Similarly, there is no evidence of the Veteran being rushed to decide or of being refused any information. While a frontal trephination was not the operation initially planned, the evidence of record indicates that it was considered a possibility and was discussed with the patient. Even if the trephination was only discussed after the change in plans, the evidence of record still indicates that the Veteran was free to ask questions or to refuse the procedure. Based on these facts, the Board finds the preponderance of the evidence indicates that the Veteran gave informed consent prior to his trephination procedure. Finally, the Board also notes that the evidence reflects that the Veteran’s claimed disability is not the proximate result of an event not reasonably foreseeable. The Veteran may contend that it is, but here again, that is a medically complex issue upon which the Veteran is not competent to opine. The competent evidence of record reflects that forehead numbness is indeed a reasonably foreseeable result of sinus trephination; in fact, forehead numbness is so foreseeable that it is discussed in the consent form for the procedure. See Consent for Treatment/Procedure received January 2014. Furthermore, both the January 2012 and the January 2016 examiners indicated that forehead numbness, itching and redness are and were a foreseeable or even a common result of the sinus trephination procedure. See January 2016 and January 2012 VA examination opinions. Put simply, there is no competent evidence of record to suggest that any of the reported symptoms represent a result not reasonably foreseeable. For the foregoing reasons, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran is entitled to compensation under the provisions of 38 U.S.C. § 1151 for residuals of sinus surgery, to include numbness around the left eye, problems with concentration, sleeping, redness, and itching. Accordingly, the claim is denied. As the preponderance of the evidence is against this claim, VA’s benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Hicks, 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.