Citation Nr: 21039800 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-47 204 DATE: July 1, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for aortic valve replacement and associated residuals is granted. FINDING OF FACT As a result of carelessness and an error of judgment on the part of a VA surgeon, the Veteran required a second aortic valve replacement surgery and has suffered additional disability as a result. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for aortic valve replacement and associated residuals have been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from August 1972 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO); this case is in VA's legacy appeals system. The Veteran testified at a February 2021 Board hearing before the undersigned; a transcript is associated with the claims file. As an initial matter, the Board notes that the Veteran provided private medical evidence in March 2021 which had not been previously reviewed but the Agency of Original Jurisdiction (AOJ). The Veteran is entitled to have the AOJ review this information and has not explicitly waived that right. However, the Board is granting the Veteran's claim for compensation under 38 U.S.C. § 1151, which is a full grant of the benefit sough on appeal. Proceeding without first referring this information to the AOJ or obtaining a waiver will therefor cause no harm to the Veteran. Entitlement to compensation under 38 U.S.C. § 1151 for aortic valve replacement and associated residuals The Veteran is seeking compensation for residuals of a February 2013 aortic valve replacement surgery performed by VA employees at a VA facility. Compensation under 38 U.S.C. § 1151 is awarded for a qualifying additional disability caused by improper VA treatment. 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 under any law administered by the Secretary of the VA, either by a Department employee or in a Department facility. Further, the proximate cause of the disability was 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 an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. In Viegas v. Shinseki, the Federal Circuit noted that Section 1151 delineates three prerequisites for obtaining disability compensation. First, a putative claimant must incur a "qualifying additional disability" that was not the result of his own "willful misconduct." 38 U.S.C. § 1151(a). Second, that disability must have been "caused by hospital care, medical or surgical treatment, or examination furnished the Veteran" by VA or in a VA facility. Finally, the proximate cause of the Veteran's disability must be "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part" of VA, or "an event not reasonably foreseeable." See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013); 38 U.S.C. § 1151(a)(1)(A), (a)(1)(B). Thus, Section 1151 contains two causation elements-a Veteran's disability must not only be caused by the hospital care or medical treatment he received from VA, but also must be proximately caused by the VA's fault or an unforeseen event. In determining whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after care or treatment is rendered. 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 causation. 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 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 Veteran was diagnosed with valvular heart disease in 2002. This condition is not related to his active service. In February 2013, at a VA hospital, the Veteran underwent an aortic valve replacement surgery. The VA surgeon inserted a 21mm prosthetic valve. In the month following his surgery, the Veteran had an echocardiogram showing an abnormally high transvalvar gradient and became symptomatic. He reported progressive symptoms of dyspnea to the point that he had difficulty performing his duties at his construction job. In October 2014, he had a transesophageal echocardiogram which confirmed the severe gradient across the valve and showed aortic regurgitation related to a perivalvar leak. In January 2015, at the encouragement of his treating cardiologist, the Veteran underwent a second aortic valve replacement surgery at a private hospital. The Veteran had a much harder course of recovery from the second surgery, complicated by encephalopathy with altered mental state for several weeks following the surgery and at least one witnessed prolonged seizure, presumed secondary to intraoperative hypoxia. In the months of his recovery he reported symptoms of cognitive impairment, problems with coordination, and apparently permanent shift in his personality. In August 2015, a VA examiner reviewed the Veteran's medical records and concluded that while the 21mm prosthetic valve inserted by the VA surgeon in February 2013 was technically within the allowable guidelines, it was both caseless and an error in judgment not to have used a larger valve. The examiner reasoned that the quick onset of symptoms after the February 2013 surgery, coupled with the January 2015 surgeon's note that they "easily fitted a 25mm valve" demonstrated that a larger valve should have been used in the first surgery and the post-surgery symptoms were technical complications related to the careless and erroneous use of a smaller valve. This examiner did not opine as to whether there was any additional disability caused by this carelessness and error of judgement. In October 2015, VA provided the Veteran with an examination to determine the cause and severity of any heart condition. The examiner noted a diagnosis of valvular heart disease since 2002, with aortic valve replacements in February 2013 and January 2015. The Veteran stated that he was having a prolonged recovery period. On physical examination most results were within normal limits except for a 1/6 systolic murmur. The examiner noted that a June 2015 echocardiogram showed left ventricular ejection fraction (LVEF) of 50-55 percent with mild biatrial enlargement and borderline RV enlargement. Interview based METs testing showed onset of dyspnea at higher than three but not greater than five METs. However, the examiner noted that this could have been partially due to deconditioning after two major surgeries and that LVEF was a more accurate measure of cardiac manifestation alone. This examiner did not specifically opine as to whether any symptoms were additional disability caused by the carelessness or error in judgment of the February 2013 surgeon. They also did not discuss any of the Veteran's psychological or neurological symptoms. In October 2016 the Veteran's longterm partner wrote a statement of her observations of the changes in the Veteran. She described his lack of energy and a new nervousness and anxiety, as well as an extreme lack of confidence and ability to recognize and act on important information. By way of illustration she described a time in August 2016 when she was in a lake almost drowning and calling for help while the Veteran stood nearby and barely acknowledged her predicament until a friend noticed and helped her. In August 2017, the Veteran's two daughters wrote statements outlining their observations of the Veteran's psychological symptoms such as memory loss, general confusion, and occasional disorientation as to the date or his relationships. The Veteran further outlined these symptoms during his testimony before the Board. In March 2021, a private cardiologist reviewed the entire record. Dr. J.P. is board certified in clinical cardiology and interventional cardiology and cares for approximately 75 patients per year recovering from surgery similar to the Veteran's, with a total patient panel of approximately 500 people. He provided several related opinions. First, based on Veteran's height and weight at the time of the February 2013 surgery, the valve used was too small and was bound to have early failure. A larger valve should have been used, even though this sometimes requires an aortic root enlargement. Second, the January 2015 corrective surgery was absolutely necessary. With the original valve severely narrowed and leaking around the edges the Veteran was unlikely to survive more than a year or two. Third, the January 2015 surgery was performed well with no issues in the operating room. However, the Veteran suffered from encephalopathy and delirium, well documented by EEG and consult notes. This was most likely due to anorexic injury (a form of brain damage) from using the cardiopulmonary bypass machine during surgery. This is a well-known complication of such surgery. Fourth, the Veteran continues to suffer from memory problems, cognitive issues, and depression as a direct result of his second operation, which was necessitated by the improperly performed initial operation. These issues are therefore a direct result of the care provided at the VA hospital in February 2013. All of the Veteran's medical records that discuss the issue, as well as both of the medical opinions of record, agree that the Veteran's care provided by a VA employee at a VA facility in February 2013, specifically inserting a 21mm prosthetic aortic valve, was careless and an error in judgment. All of the medical records that discuss it, as well as both of the medical opinions of record, agree that this carelessness or error of judgment led to the necessity of a second, corrective surgery performed by a private surgeon, in January 2015. The records after this are not as definite as to what symptoms were specifically linked to the Veteran's second surgery, as opposed to general deconditioning or the natural progression of his valvular disorder. However, the Board finds the opinion of Dr. J.P. particularly probative because it was based on a review of the Veteran's full medical history and provided an explanation for the Veteran's symptoms that was consistent with both medical and lay evidence of record. Resolving all reasonable doubt in favor of the Veteran, he has a current residuals of a January 2015 aortic valve replacement surgery, specifically including residuals related to the use of a cardiopulmonary bypass machine, which were caused by the carelessness and error of judgment of a VA employee providing medical care at a VA facility in February 2013. Compensation for this additional disability is therefore warranted under 38 U.S.C. § 1151; 38 C.F.R. § 3.361. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zimmerman, Micah 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.