Citation Nr: 22040134 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-28 384A DATE: July 13, 2022 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for post-surgical collapsed lung is denied. FINDING OF FACT The Veteran's collapsed lung did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA; or an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 for memory loss are not met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. § 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1968 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in January 2022. A transcript is of record. 1. Entitlement to compensation under 38 U.S.C. § 1151 for post-surgical collapsed lung is denied. The Veteran seeks entitlement to compensation pursuant to 38 U.S.C. § 1151 for post-surgical collapsed lung. Specifically, he asserts that his collapsed lung is the result of heart surgery in 2011. He contends that the surgeon used a new procedure through the side, and that the surgeon should have used the traditional method for heart surgery. Although sympathetic to the Veteran's contentions, the Board finds that this claim must be denied based on a lack of legal entitlement under the law. Compensation shall be awarded for a qualifying additional disability of a veteran in the same manner as if such additional disability were service-connected. For the purposes of this section, 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 to the veteran under any law administered by the Secretary, "either by a Department employee or in a Department facility." In addition, the proximate cause of the disability must be either 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 not reasonably foreseeable. 38 U.S.C. § 1151. 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 upon which the claim is based to the Veteran's condition after such care [or] treatment has stopped. 38 C.F.R. § 3.361(b). Whether the proximate cause of a veteran's additional disability 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 disclosed in connection with the informed consent procedures of § 17.32 of this chapter. 38 C.F.R. § 3.361(d)(2). To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32 of this chapter. Minor deviations from the requirements of §17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in §17.32(b) of this chapter, as in emergency situations. 38 C.F.R. § 3.361(d)(1)(ii). In November 2011, the Veteran presented for minimally invasive mitral valve replacement and repair. He endorsed shortness of breath with exertion and recent lower extremity edema. Providers noted a medical history of rheumatic fever and lifelong heart murmur. Risks and benefits were reviewed to the Veteran, who verbalized understanding and agreed to proceed with his surgery. A November 2011 informed consent note indicated that, although rare, risks of surgery included: injury to blood vessels, drug reactions, bleeding, blood clots, loss of sensation or limb function, infection, paralysis, stroke, brain damage, heart attack, and death (emphasis added). In August 2015, a VA examiner reviewed the claims file. Medical history revealed the Veteran was admitted in November 2011 for surgery for severe mitral regurgitation. Informed consent was obtained, and the surgery was performed with no complications noted at that time. In April 2012, the Veteran presented to pulmonary, and their impression was of a right lower lob compression atelectasis with concern for a right hemi-diaphragm paralysis. The examiner opined that a causal relation was established, as the Veteran's atelectasis of the right lung presented soon after surgery and was not present prior to surgery. This was due to an injury of the phrenic nerve during surgery. The examiner further opined that the claimed disability was not the result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The examiner explained that his problem can arise due to the close proximity of the various structures in the confined operative field. It is difficult to determine when and in which individuals this will occur. The examiner elaborated that the injury is an unintentional and often unavoidable part of the surgery despite the best efforts of the surgeon. In conclusion, the fact that it appeared was an adverse issue arising from the nature of the surgery, and not from the health care team. Finally, the examiner found that while this issue was not necessarily predictable, it was a possibility for the surgery. As such, the standard medical care informed of the Veteran of the possible issues that can occur with the operative procedure. The examiner indicated that chart notes demonstrated this did occur. The record shows that the Veteran did not report any collapsed lung issues prior to heart surgery, but began reporting breathing difficulties immediately after and has continued to report such issues. The August 2015 VA examination report found that the Veteran followed anticipated course of recovery following surgery. There were no pneumothoraxes that were noted during the time he was hospitalized. In April 2012, the Veteran was seen by pulmonary service. Treatment providers assessed right lower lobe compression atelectasis with concern for a right hemi-diaphragm paralysis. A sniff test in May 2012 revealed findings consistent with right phrenic nerve paralysis and paradoxical motion of the right hemi-diaphragm. The examiner concluded that a causal relationship between the Veteran's surgery and the issue of atelectasis of the right lung was established. Additionally, respiratory complications are a known risk factor for heart surgery. Thus, the Board finds that the Veteran suffers from an additional disability that was caused by his VA treatment. However, despite finding actual causation, the Board finds that proximate causation has not been established. An opinion regarding proximate causation was initially obtained in August 2015. The examiner opined that the VA did not fail to exercise the degree of care that would be expected of a reasonable health care provider and that the Veteran's collapsed lung was an event that was reasonably foreseeable. The examiner explained that the Veteran's collapsed right lung was due to an injury of the phrenic nerve during surgery. This problem is one that can arise due to the close proximity of the various structures in the confined operative field. The examiner indicated that it is hard to determine when and in which individuals this will occur. Further, the examiner stated that this injury was an unintentional, and often unavoidable, part of the surgery. As such, the examiner indicated that standard medical care is such that the Veteran is informed of the possible issues that can occur with the operative procedure. In this case, chart notes demonstrated that this occurred. The fact it appeared was an issue arising from the nature of the surgery, rather than from the health care team. Thus, the examiner concluded that the Veteran's phrenic nerve injury and collapsed lung was not a result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel. The Board finds the opinions of the August 2015 VA examination to be highly persuasive and probative regarding proximate causation. The examiner's findings were based on their medical expertise and training, and their comprehensive review of the evidence. The opinion reflects consideration of the complete record and the Veteran's contentions. The opinion was supported with thorough rationales which the Board finds are consistent with the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Moreover, there is no medical opinion to the contrary. The Board acknowledges the Veteran's contention that his collapsed lung is the result of his surgery. However, the questions of whether there was negligence or fault in VA treatment, or whether a medical complication of treatment was reasonably foreseeable are complex questions and the province of trained medical providers. The November 2011 VA treatment record shows that the Veteran's attending physician reviewed the risks and benefits of the procedure to the Veteran, who verbalized understanding and agreed to the procedure. An informed consent note in the record specifically highlighted a possible risk of paralysis due to the procedure, among other serious complications. Thus, the Veteran was made aware of possible risks of open-heart surgery prior to undergoing the operation. The Veteran also contends that a "traditional" surgery should have been performed, and that the surgeon was presumably negligent by using the minimally invasive procedure documented in the record. The Veteran, as a layperson, is not competent to offer a medical opinion as to the specific type of mitral valve surgery performed. See Jandreau v. Nicholson, 492 F.3d 1372, 1977 (Fed. Cir. 2007). Surgery is medically complex, as it requires specialized medical education to perform. The Veteran's opinion that a "traditional" surgery should have been performed, and that the procedure used by the surgeon was by its nature negligent, consequently is afforded no probative weight. Consequently, the Board gives more probative weight to the competent August 2015 VA opinion. Thus, in light of the foregoing, the Board finds that there was no lack of informed consent, and the Veteran was capable of providing such consent. The Board also notes the August 2015 VA opinion found the Veteran's collapsed lung due to phrenic nerve injury was reasonably foreseeable, due to the close proximity of structures and the confined operative field. The Board finds that such additional disability was considered an ordinary risk and reasonably foreseeable, and disclosed as a possible complication (paralysis) on the consent form in the record. (Continued on the next page) In sum, there is an additional disability, specifically collapsed lung secondary to phrenic nerve injury, following the VA treatment in November 2011. However, the most competent and probative evidence of record establishes the proximate cause of this additional disability was not carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical treatment; or an event not reasonably foreseeable. Accordingly, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and compensation for a collapsed lung is not warranted. J. Nichols Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen, 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.