Citation Nr: 0810564 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 06-01 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to compensation benefits under the provisions of 38 U.S.C.A. § 1151 for pressure ulcers due to VA hospital care in December 2001. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD R. Kessel, Associate Counsel INTRODUCTION The veteran had active military service from November 1968 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In March 2005, the veteran's representative submitted a claim for receipt of pension benefits. As this issue has not been developed for appellate review, it is referred to the agency of original jurisdiction (AOJ) for appropriate action. REMAND The veteran contends that he has additional disability pertaining to pressure ulcers as the result of VA hospital care in December 2001. Specifically, he alleges that he developed pressure ulcers on his buttocks after he was improperly left on a bedpan for a lengthy time overnight between December 11 and December 12, 2001, at the VA Medical Center (VAMC) in Little Rock, Arkansas. The veteran's claim for compensation benefits under 38 U.S.C.A. § 1151 was received by the RO in May 2002. With respect to claims filed on or after October 1, 1997 (see VAOPGCPREC 40-97 (Dec. 31, 1997)), 38 U.S.C.A. § 1151 provides in pertinent part that compensation shall be awarded for a qualifying additional disability in the same manner as if such additional disability was service connected. For 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 the veteran under any law administered by the Secretary, and the proximate cause of the disability 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.A. § 1151(a) (West 2002 & Supp. 2007). To determine whether additional disability exists within the meaning of § 1151, 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 program upon which the claim is based is compared to his condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved is considered separately. 38 C.F.R. § 3.361(b) (2007). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1) (2007). 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)(2) (2007). Additional disability caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3) (2007). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d) (2007). 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 and (i) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or (ii) that VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. 38 C.F.R. § 3.361(d)(1). Finally, the determination of whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is to be based on what a reasonable health care provider would have foreseen. The event does not have to 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. 38 C.F.R. § 3.361(d)(2). The regulation further provides that, 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). A review of the medical evidence from the VAMCs in Little Rock and Fayetteville, Arkansas, reveals that the veteran, a T-7 paraplegic, fractured his right femur on December 8, 2001. He was admitted to the Fayetteville VAMC and then transferred to the Little Rock VAMC on December 11, 2001. The veteran was hospitalized in Little Rock until December 14, 2001, for stabilization of the fracture. He was then transferred back to Fayetteville for further treatment. The records are negative for pressure ulcers of the buttocks immediately prior to being admitted to Little Rock. On December 11, 2001, the veteran's only pressure ulcer prior to admission was on his left heel. During his stay in Little Rock, it was noted that the veteran had pressure ulcers on his buttocks on December 12, 2001. In conjunction with his treatment for the femur fracture, the veteran was subsequently treated for pressure ulcers of the buttocks at Little Rock and Fayetteville. The veteran's treatment records reflect a history of, and current treatment for, pressure ulcers of the buttocks and other areas of the body. The record is absent a detailed chronology concerning the veteran's allegations. Nursing notes document that the veteran was resting comfortably at 7:28pm on December 11, 2001. According to the notes, the veteran was seen at 12:56am on December 12, 2001, to address concerns about his medication. There was no mention of problems with a bedpan or ulcers in that note. A note from 4:51am indicates that the veteran had rested at long intervals. Later that morning, the veteran appeared for surgery regarding the right femur before returning to his bed at 10:22am. By 2:58pm on December 12, 2001, the veteran was being treated for pressure ulcers of the buttocks. There is no specific information regarding bedpan use, other than the veteran's complaint at 11:05pm on December 12, 2001. In that entry, it was noted that the veteran reported that his buttocks were sore from being on a bedpan the previous night. Given the lack of detailed information from the time in question, the case must be remanded in order to attempt to garner more information. The AOJ should investigate the events of December 11, 2001, and December 12, 2001, at the Little Rock VAMC. Among other things, copies of evidence that may have been obtained pursuant to investigation of the tort claim that was settled by VA in February 2004 should be obtained. In January 2004, the veteran was afforded a VA examination in connection with the claim. The examiner noted the relevant medical history. On examination, it was noted that the veteran had two pressure ulcers, one on the left buttock and one on the right hip. The examiner noted that the veteran was receiving treatment for these ulcers at the Fayetteville VAMC. After comparing photographs of the pressure ulcers from 2001, the examiner stated that it appeared that the current pressure ulcers were not related to the ones in question because they were in different locations. The examiner stated that the pressure ulcers from 2001 had resolved. The examiner diagnosed the veteran with paraplegia, current pressure ulcers to the buttocks area, and old pressure ulcers to the buttocks area, which now appear to be resolved. The examiner commented further that, according to the photographs of the pressure ulcers sustained at the Little Rock VAMC in 2001, the pressure ulcers were consistent with the shape of an ulcer left by a bedpan. The examiner stated that, while there was no evidence of pressure ulcers on admission, they were easily identified the next day. After reviewing the chart from that time period, the examiner stated that the veteran was apparently left on a bedpan for at least some period of time. In the examiner's opinion, the pressure ulcers were at least as likely as not related to an extended period of time of resting on a bedpan consistent with the veteran's description of what occurred at the Little Rock VAMC. The Board concludes that an additional medical opinion is warranted in this case. 38 C.F.R. § 19.9 (2007). A medical opinion should be requested after a physician is able to review any further information and evidence obtained from the AOJ's investigation. Moreover, although the January 2004 VA examiner provided an opinion as to causation, a more detailed opinion is warranted. The prospective physician should also address whether the veteran's pressure ulcers of the buttocks from December 2001 are truly resolved without any residual disability. The physician should comment on the timeframe of their existence. (Even if disability has resolved, compensation may nevertheless be paid for disability that existed for any period during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007).) The physician should also address whether the pressure ulcers were caused by VA hospital care, medical or surgical treatment, or examination furnished the veteran as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. Additionally, the physician should address whether the pressure ulcers resulted from an event not reasonably foreseeable. Further medical examination of the veteran may be warranted if deemed necessary by the physician selected to issue the opinion. Accordingly, this case is REMANDED for the following actions: 1. Conduct an investigation into the specifics regarding the December 2001 bedpan use in the care of the veteran. To the extent possible, obtain copies of evidence that was obtained in the investigation of the tort claim settled by VA in February 2004. Ask the claimant to provide a detailed statement as to when the bedpan was used and for how long. 2. Arrange for a physician to review the veteran's claims file, including the records from the Little Rock and Fayetteville VAMCs and any supplemental information obtained from the investigation. The physician is requested to answer the following questions: A. Did the veteran suffer additional disability due to pressure ulcers, not of his own willful misconduct, as the result of hospital care, medical or surgical treatment, or examination furnished the veteran by the Little Rock VAMC on December 11, 2001 to December 12, 2001? B. If so, have the pressure ulcers completely resolved without any further residual disability? If so, when did they resolve? C. Was any additional disability proximately caused by 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? D. Was any additional disability proximately caused by an event not reasonably foreseeable? Was the risk of that event the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedures? The physician must provide the complete rationale for the conclusions reached-to include, as appropriate, citation to specific evidence of record and/or medical authority. (The AOJ should arrange for the veteran to undergo another medical examination only if such examination is needed to answer the questions posed above.) After the requested opinion has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the physician. 3. After undertaking any other development deemed appropriate, re- adjudicate the issue on appeal. If the benefit sought is not granted, furnish the veteran and his representative with a supplemental statement of the case (SSOC) and afford them an opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by VA. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).