Citation Nr: 1647828 Decision Date: 12/22/16 Archive Date: 01/06/17 DOCKET NO. 14-23 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for amputation of the right foot with secondary kidney condition. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from October 1961 through October 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's testimony was received during an April 2015 video conference hearing. A transcript of that testimony is associated with the record. This matter was remanded previously by the Board in March 2016 for further development of the issue on appeal. The ordered development has been performed and the matter now returns to the Board for review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran developed multiple recurring diabetic ulcers on his right foot which, among other treatments, were treated by a right foot incision and drainage procedure performed on May 3, 2013; debridement of necrotic tissue, drainage, and transmetatarsal amputation on his right foot on May 15, 2013; and a below the knee amputation on his right lower extremity on May 29, 2013. 2. The Veteran has end stage renal failure. 3. The below the knee amputation performed on May 29, 2013 was not necessitated by additional disability 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, medical or surgical treatment, or examination, or as a result of an event not reasonably foreseeable from the previous procedures performed on May 3, 2013 and/or on May 15, 2013. 4. The Veteran's end stage renal failure did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination, or result from an event not reasonably foreseeable from the previous procedures performed on May 3, 2013 and/or on May 15, 2013. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for amputation of the right foot with secondary kidney condition are not met. 38 U.S.C.A. §§ 1151, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.361 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The Veteran submitted a VA Form 21-526EZ on August 2013, which contained the notice elements. Additionally, the Veteran has been assisted through the appeals process by an appointed representative, and in his lay statements and hearing testimony, he has demonstrated knowledge of the basic elements necessary to prove his claim and of the information and evidence that would assist him in showing those basic elements. VA has also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claim. The Veteran's lay statements, hearing transcript, and VA treatment records have been associated with the claims file. Additionally, a medical record review and opinion were obtained from a VA physician on March 2014. That opinion, considered along with the other evidence of record, is fully adequate for purposes of this appeal. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Analysis The Veteran asserts that a VA surgeon failed to remove all of the infectious tissue during a debridement procedure. He asserts further that the attending VA medical staff subsequently failed to prescribe proper antibiotic medication. He asserts that due to those alleged errors in treatment, the condition in his right foot worsened and ultimately necessitated amputation of toes on his right foot, followed by amputation of his right foot thereafter. He asserts also that stress caused by the procedure for amputating his toes resulted in his current end stage renal failure. In pertinent part, 38 U.S.C.A. § 1151 provides for compensation for qualifying additional disability in the same manner as if such additional disability were service-connected. A qualifying additional disability is one in which: 1) the disability was not the result of the Veteran's willful misconduct; 2) the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran; and 3) the proximate cause of the disability is the result of 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 was the result of an event not reasonably foreseeable. Id. Thus, under the applicable law, an evidentiary showing of VA fault or an event not reasonably foreseeable would be required in order for this claim to be granted, if the evidence were to establish additional disability which was caused by hospital care, or by medical or surgical treatment, rendered by the Department of Veterans Affairs. 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). In order 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 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). In order 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, the evidence must show 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. Records for VA treatment received by the Veteran since 2002 document that the Veteran has had longstanding diabetes mellitus, type II that was controlled poorly and resulted in various complications, including diabetic neuropathy, retinopathy, kidney damage, and recurring skin ulcerations on his right foot. In December 2012, he was treated for a right foot ulcer that was debrided by a VA podiatrist. Subsequent records do not indicate any complications; however, he returned on March 25, 2013 for treatment of a puncture wound on his right foot. The wound was pared and cleaned. No signs of an infection were observed. The treating VA podiatrist, in consultation with an infectious disease specialist, prescribed a penicillin antibiotic, Augmentin. The Veteran was advised to stay off his feet to allow the wound to heal. Crutches and a wheelchair were ordered. The Veteran returned for follow-up examination and treatment on April 1, 2013. At that time, the wound was noted as being improved. The Veteran's prescription for Augmentin was continued. On April 15, 2013, the Veteran was admitted for in-patient care of ulcerations on the metatarsal heads of his right foot. The ulcerations were noted for being unimproved. Additionally, several small ulcers were observed at the plantar arch of the right foot. MRI studies revealed generalized cellulitis to the plantar foot. Vascular studies showed the presence of vascular compromise. Notably, the Veteran admitted that he had increased weight bearing activities over the preceding week, and also, that he had failed to refill his prescription of Augmentin after his previous visit. Hence, he had apparently not been taking Augmentin for several days. The Veteran was given IV Zosyn and IV Vancomycin. On April 18, 2013, the wounds were debrided and dressed. Of note, the Veteran insisted on being discharged to his home despite the absence of significant improvement in his wounds. He was discharged from his hospitalization on April 24, 2013. The following day, the Veteran was seen for continued treatment of the diabetic ulcers on his foot. On examination, attending physicians noted that the wounds had not responded to the prescribed Augmentin. Upon evaluation by the Veteran's podiatrist, infectious disease specialist, and a VA general surgeon, the Veteran was maintained on Augmentin. Based on findings noted in a wound culture study, Doxycycline was added. The infectious disease specialist recommended to the Veteran that he continue his antibiotic treatment for another three or four weeks. The Veteran was also followed by a nephrologist for diabetic nephropathy. Creatine levels were apparently increased abruptly at the time of the Veteran's admission. The Veteran underwent dialysis after which creatine levels apparently returned to baseline levels. Re-examination of the Veteran's foot on May 2, 2013 revealed that the ulcers on the metatarsal heads and plantar surface were essentially unchanged. The following day, the Veteran underwent a procedure to debride necrotic tissue from the right foot ulcers. Pending the results from a culture study of samples taken from the Veteran's wounds, the infectious disease specialist recommended that the Veteran restart Augmentin and Doxycycline treatments. Results from the culture study showed mainly strep agalactiae and the Veteran was maintained on the foregoing medications. On May 7, 2013, the Veteran's wounds were re-examined by his VA podiatrist and infectious disease specialist. The wounds appeared slightly improved; however, a slightly dusky appearance was observed in the wounds over the plantar aspect. The Veteran's attending physicians recommended that the Veteran be transferred to a Community Living Center for further care of the wounds on his feet. Apparently, the Veteran initially resisted the treatment plan and he was counseled to remain off his right foot and that walking would likely worsen his condition. The Veteran's physicians advised also that the Veteran was at risk of losing not only his foot but parts of his right leg. Ultimately, the Veteran agreed to be transferred to the Community Living Center. Notably, the Veteran was received a mental health evaluation that same day because of expressed despair and concerns regarding his current condition. The Veteran acknowledged that he was counseled as to the risks associated with his right foot condition and with failing to follow the treatment plan, as he stated, "I got bad news this morning. They told me if I went home, there would be a good chance my foot could worsen and I might even lose it." Subsequent VA treatment records show that on May 14, 2013, ulcerations on the third and fourth toes of the Veteran's right foot had a dusky appearance and an odor. The surgery team was consulted and the Veteran was transferred back to the VA hospital on May 15, 2013. An examination at that time revealed that the Veteran's right second through fifth toes were necrotic. The VA podiatrist recommended to the Veteran that he undergo an amputation of two toes and bone from his right foot. The Veteran requested a second opinion and one was obtained from a VA general vascular surgeon, who concurred with the VA podiatrist. The procedure was performed on May 15, 2013. Post-surgical records show that despite the procedure to amputate the Veteran's toes, concerns remained about a remaining deep foot wound infection with purulent discharge. The Veteran was counseled that he may not have adequate skin and tissue to heal a LisFranc amputation (i.e., between the metatarsals and tarsals). Still, the Veteran advised that he did not approve a below the knee amputation and that he wished for attending physicians to make every effort to do a partial foot amputation so that he can walk on his heel. The Veteran remained hospitalized for ongoing care and observation of his wound. During that time, the ulcerations on his foot did not improve significantly and attending physicians continued to recommend a below the knee amputation. The Veteran expressed that he wished to be discharged temporarily so that he could attend a healing ceremony. VA medical staff encouraged the Veteran to remain in the hospital for continued antibiotics and wound care; however, the Veteran indicated that he would return to the hospital the following day to resume his care and to undergo surgery for a below the knee amputation. He was discharged from care at his request on May 22, 2013. On May 23, 2013, the Veteran's medical case was referred to a VA orthopedist for review and a treatment opinion. On review of the Veteran's chart, the orthopedist concluded that given the Veteran's multiple comorbidities, poor circulation at the wound, and the limited chance of success of a transmetatarsal amputation, his first recommendation would be that the Veteran undergo a below the knee amputation. The following day, May 24, 2013, the Veteran was readmitted and consented to undergoing a below the knee amputation. The amputation was performed on May 29, 2013. Post-surgical records do not note any complications arising from the surgery or from the Veteran's kidney disease. Similarly, records for subsequent VA treatment records do not reflect any complications in the Veteran's right lower extremity. Although those records show that the Veteran has been followed for end stage renal disease and that he has treated that condition with hemodialysis three times per week, there is no indication in the records that the Veteran's kidney condition was complicated or impacted by the treatments rendered for his right foot. In March 2014, VA sought a medical records review and opinion concerning the Veteran's condition and the treatment rendered for his right foot. On review of the record, the VA examiner recites a medical history that is essentially consistent with that reported above. Regarding the Veteran's kidney, the examiner noted that the Veteran's serum creatinine was 1.4 on April 1, 2013 and jumped to 3.4 at the time of his hospitalization on April 16, 2013. The nephrologist at that time diagnosed acute kidney injury secondary to diabetic nephropathy. The examiner notes that there is clear evidence of worsening diabetic nephropathy over the years, and in that regard, points out that the Veteran's microalbumin/creatine level was 314 mg/g on November 7, 2005; 974 mg/g on August 17, 2007; and 3190 mg/g on February 5, 2013. The examiner notes also that during his period of hospitalization in April 2013, the Veteran was scheduled to undergo dialysis, and indeed a dialysis line was placed; however, the Veteran was discharged from care at his request before the dialysis could be performed. Overall, the VA examiner opines that there is no medical evidence of causation of the Veteran's kidney disease by VA treatment. As rationale, he notes that the Veteran's illnesses were diagnosed and treated in a timely fashion. Moreover, he opines there is no evidence in the record to indicate carelessness or fault on VA's part in furnishing hospital care and medical or surgical treatment. In that regard, he concludes that the care and medical treatment provided was appropriate and of a degree that is expected or foreseen of a normal health care institution or medical provider. The examiner observed that the Veteran's nephrologist's comments on the Veteran's history of uncontrolled diabetes, along with a pre-existing history of diabetic nephropathy as causation for the rising creatinine. The examiner notes that those are well-known complications of diabetes and of diabetic neuropathy and are a reflection of the Veteran's preceding severe diabetes and underlying kidney disease. Concerning the Veteran's right foot, the examiner opines also that the Veteran was given appropriate treatment as an outpatient since 2008. Notably, the examiner observed that choices of antibiotics for the Veteran during his outpatient treatment and during his first period of hospitalization were appropriate. In that regard, the examiner states that the decision concerning the use of antibiotics is made based on the results of cultures, and in this case, wound cultures were taken. Further, specific knowledge about potential pathogens that can be involved in diabetic foot infections is also considered. The examiner observes that when the Veteran's infection became more severe, he was appropriately hospitalized and treated. As noted by the infectious disease specialist, the Veteran's diabetic foot condition was worsening due to the Veteran placing weight on his foot at home and not taking his prescribed antibiotics. The examiner noted that the Veteran was subsequently hospitalized and placed on IV antibiotics. Antibiotics were considered a crucial treatment for the Veteran's infection at that time, and in that regard, the examiner states that withholding antibiotic treatment at that time would certainly have been inappropriate. The examiner notes also that there is evidence that the Veteran did not follow his health plan as directed, in that he did not have his antibiotic prescription refilled, that he left hospital treatment before receiving full treatment, and his own decision to delay inevitable treatment and surgery. In sum, the examiner concludes that the worsening of the Veteran's right foot infection, along with his baseline severe diabetes mellitus and long-term diabetic nephropathy caused his acute kidney injury. He concludes that the VA medical staff provided the appropriate care by prompt diagnosis, choice of treatment, and surgical intervention. The VA examiner's March 2014 opinions are supported by thorough rationale and explanation that is based on facts gained from an accurate review of the record and are consistent with the facts in the record. Moreover, those opinions are not rebutted in the record by any contrary opinions rendered by a medical professional. Accordingly, the Board assigns significant probative weight to the VA examiner's opinions. As noted at the beginning of the analysis, the Veteran and his representative have raised arguments that the treatment rendered in relation this right foot was inadequate, and thus, resulted in worsening of his condition which caused his right foot to be amputated. He asserts that the initial procedure to remove necrotic tissue was not performed skillfully and in such a fashion that residual necrotic tissue was allowed to remain in his foot. Alternatively, he argues that Augmentin was improperly prescribed, and during the hearing, the Veteran's representative raised arguments that Augmentin was not suitable for the Veteran's specific condition. In addressing lay evidence and determining what, if any, probative value may be assigned to it, the Board must consider elements of both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, neither the Veteran nor his representative are competent to offer a probative opinion as to the complex medical questions regarding the degree of medical care rendered for the Veteran's right foot and the appropriateness of that care. Such an opinion requires critical analysis of the Veteran's medical history, advanced knowledge of the Veteran's conditions, and application of learned medical principles to the specific facts of this case. Accordingly, the opinions expressed by the Veteran and his representative regarding the degree and appropriateness of care rendered to the Veteran are entitled no probative weight. In contrast, the Veteran assigns far greater weight to the findings and conclusions reported by the VA examiner. Overall, the weight of the evidence does not reflect carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the Veteran with treatment for his right foot. Moreover, and in relation to the Veteran's end stage renal disease, the weight of the evidence does not reflect that the Veteran's current condition was caused in any way by such treatment. Accordingly, the Veteran is not entitled to benefits under 38 U.S.C.A. § 1151 for amputation of his right foot with secondary kidney condition. This appeal is denied. ORDER Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for amputation of the right foot with secondary kidney condition is denied ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs