Citation Nr: 23005455 Decision Date: 01/27/23 Archive Date: 01/27/23 DOCKET NO. 15-37 905 DATE: January 27, 2023 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a right lower extremity disability as a result of a VA surgical procedure on July 6, 1999, is denied. FINDING OF FACT The Veteran's right lower extremity disability is not the result of delay in treatment, carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault as a result of VA hospital treatment, nor the result of an event not reasonably foreseeable or the lack of informed consent. CONCLUSION OF LAW The criteria have not been met for entitlement to VA compensation pursuant to 38 U.S.C. § 1151 for a right lower extremity disability. 38 U.S.C. §§ 1151, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2018 decision, the Board denied entitlement to VA compensation pursuant to 38 U.S.C. § 1151 for a right lower extremity disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a December 2019 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate the September 2018 Board decision and remand the issue of back to the Board for further consideration as consistent with the JMPR. In December 2020, September 2021, and June 2022, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has since returned to the Board. 1. Entitlement to compensation under 38 U.S.C. § 1151 for right lower extremity disability as a result of a VA surgical procedure on July 6, 1999, is denied. The Veteran contends that he is entitled to compensation for his right lower extremity disability that resulted from a VA surgical procedure performed in July 1999. Under 38 U.S.C. § 1151, compensation shall be awarded for a Veteran's qualifying additional disability in the same manner as if such additional disability was service-connected. A qualifying disability is one which is not the result of a Veteran's willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished under any law administered by VA, and the proximate cause of the disability is 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 (a). To determine whether the Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, or training and rehabilitation services upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361 (b). VA considers each involved body part or system separately. Id. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, resulted in the Veteran's additional disability. 38 C.F.R. § 3.361 (c)(1); see also 38 C.F.R. § 3.358 (c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 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 (as explained in paragraph (c) of this section); and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider. 38 C.F.R. § 3.361 (d)(1). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance 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 or medical or surgical treatment caused the Veteran's additional disability; 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. 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). 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 38 C.F.R. §§ 17.32. 38 C.F.R. § 3.361(d)(2). In this instance, the Veteran contends that compensation under § 1151 is warranted for peripheral neuropathy and peroneal nerve injury in his right leg, which resulted from a surgical procedure to remove an atypical nevus versus from his right lower leg at West Los Angeles VA Medical Center. The Veteran has consistently alleged that he suffered numbness and nerve pain in his right lower extremity since his surgical procedure in July 1999. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Medical evidence of record confirms the history of Veteran's complaints of numbness and nerve pain since the Veteran's surgical procedure. Prior to the July 1999 surgical procedure, the record does not show that the Veteran had a right lower extremity disability. In August 2004, a nerve conduction test confirmed the presence of peripheral neuropathy and peroneal neuropathy in the Veteran's right lower extremity. In 2007, an EMG test confirmed right superficial peroneal sensory nerve action reduction. Here, the Board finds no reason to doubt the credibility of the Veteran's lay statements concerning the presence of a right lower extremity disability since his surgical procedure in July 1999. As such, his lay statements supporting a right lower extremity disability are probative. The Board finds that the lay statements of record, as well as supporting medical evidence showing right lower extremity nerve injury, weighs heavily in favor of finding that the Veteran does have a qualifying additional disability for compensation purposes. In so finding, the Board takes notice that such complaints were not noted prior to the July 1999 VA surgical procedure but has continuously been noted ever since the July 1999 surgical procedure, to include immediately after the procedure. Considering the record, in a light most favorable to the Veteran, the Veteran has established a qualifying additional disability. The Board makes such finding despite medical evidence against finding that the Veteran has a qualifying additional disability. See August 2022 C&P Exam. The Board accords little probative to the August 2022 C&P examiner's opinion that the Veteran did not have an additional disability because the examiner failed to adequately consider the Veteran's lay statements of a continuity of right lower extremity symptoms since his July 1999 surgery. In this instance, the Board has resolved doubt in the favor of the Veteran and finds that he has a qualifying additional disability. Further, there is no question regarding whether the surgical procedure was performed at a VA facility. Thus, the first and second elements are satisfied. Thus, the remaining issue before the Board is whether the "proximate cause" of the Veteran's additional disability is "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." As an initial matter, the Board finds that written informed consent was obtained on July 6, 1999, prior to the procedure. Specifically, the Veteran's treatment notes document a July 1999 procedure note that detailed an informed consent discussion about the risks of the planned excisional biopsy of the atypical nervus on the Veteran's right lower extremity. The discussion detailed that the risks of the procedure included bleeding, infection, and nerve injury. Further, the procedure narrative included that the lesion margins were marked as to minimize the possibility of lateral peroneal nerve injury. The report indicated that the Veteran signed the consent. Lastly, the Veteran has offered no competent evidence that treatment below the appropriate standard of care was provided by the VA, or the VA approved facility, and the Board finds that analysis of this procedure is beyond the scope of lay diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Simply experiencing a risk that the Veteran was informed of does not arise to the level of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA. Finally, the complications of injury to his right lower extremity cannot be determined to be not reasonably foreseeable as the Veteran was informed of the potential of such complication. While very unfortunate, the complication from the procedure was reasonably foreseeable. See 38 C.F.R. § 3.361 (d) (2). There is no contrary medical opinion on this issue of record. In making this determination regarding the foreseeability of the Veteran's procedure complications, the Board finds that the Veteran's complications from his July 1999 excision biopsy 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, as reflected in the July 1999 informed consent discussion. Accordingly, the Board finds that a "reasonable health care provider," not merely the Veteran's health care provider, would have disclosed this risk. See Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). The Board is sympathetic to the Veteran's contentions. However, in light of the above, the Board finds that the criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for a right lower extremity additional disability caused by his July 1999 excision biopsy at a VA approved facility have not been met, and the claim must be denied. Because the persuasive evidence is against the § 1151 claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. at 55 (1990). Accordingly, entitlement to compensation under 38 U.S.C. § 1151 for a right lower extremity disability is denied. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, 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.