Citation Nr: 1009502	
Decision Date: 03/12/10    Archive Date: 03/17/10

DOCKET NO.  06-13 034	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUE

Entitlement to compensation under the provisions of 38 
U.S.C.A. § 1151 for a disorder of the left fourth toe.

(The claim of whether a decision of the Board of Veterans' 
Appeals, which declined to reopen the Veteran's claim of 
entitlement to service connection for residuals of a 
hysterectomy, should be revised or reversed on the grounds of 
clear and unmistakable error (CUE), will be the subject of a 
separate appellate decision).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

Jeanne Schlegel, Counsel


INTRODUCTION

The Veteran served on active duty with the United States Air 
Force from August 1970 to May 1972.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a March 2005 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Nashville, Tennessee.

This issue was previously before the Board in January 2009, 
at which time the Veteran's claim for compensation brought 
under the provisions of 38 U.S.C.A. § 1151 was remanded.  The 
actions requested in that Remand have been undertaken and the 
claim has returned the Board for appellate consideration.  


FINDINGS OF FACT

1.  On March 9, 2004, the Veteran underwent bilateral 
bunionectomy, exostectomy of the left fifth digit, and 
phalangeal head resection of the left fourth digit, due to 
clinical indications of bilateral hallux valgus, 
hypertrophied head of the proximal phalanx of the 4th left 
toe and exostosis of the left fifth toe.

2.  The file contains an informed consent form which was 
signed by the Veteran and her treating VA physician on March 
3, 2004, indicating that the Veteran understood that the 
nature and reasons for the medical procedure to be undertaken 
on March 9, 2004 and acknowledging that she was aware of the 
alternatives, possible risks, complications and benefits, 
associated with the surgery.

3.  Residuals which were shown following the March 9, 2004 
surgery, to include soft tissue deformity of the left 4th toe 
with pain, described by a medical professional as reasonably 
foreseeable residuals of the surgery.  



4.  The file contains a competent and informed medical 
opinion to the effect that there was no indication of 
deviation of the appropriate standard of care shown in 
conjunction with the surgery preformed by VA on March 9, 
2004. 


CONCLUSION OF LAW

The criteria for entitlement to compensation under the 
provisions of 38 U.S.C.A. § 1151 for additional disability of 
the left fourth claimed as resulting from treatment received 
from a Department of Veterans Affairs Medical Center/facility 
(VAMC) in March 2004, have not been met.  38 U.S.C.A. § 1151 
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.361, 17.32 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act

With respect to the Veteran's claim, VA has met all statutory 
and regulatory notice and duty to assist provisions.  See 38 
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.  Under the law, when 
VA receives a complete or substantially complete application 
for benefits, it is required to notify the claimant and her 
representative, if any, of any information and medical or lay 
evidence that is necessary to substantiate the claim.  38 
U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2008); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Title 38, United States Code, Section 1151 provides that 
where a veteran suffers an injury or aggravation of an injury 
resulting in additional disability by reason of VA medical or 
surgical treatment, compensation shall be awarded in the same 
manner as if such disability were service connected.  See 
Anderson v. Principi, 18 Vet. App. 371, 376 (2004);  see also 
Kilpatrick v. Principi, 16 Vet. App. 1, 3 (2002).  


The notice required by the VCAA can be divided into three 
elements.  Specifically, VA must inform the claimant of any 
information and evidence not of record: (1) that is necessary 
to substantiate the claim; (2) that the claimant is to 
provide; and (3) that VA will attempt to obtain.  Beverly v. 
Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA 
notice requirements).

The Board observes that VCAA notice must be provided before 
the initial unfavorable determination by the RO.  Pelegrini 
v. Principi, 18 Vet. App. 112, 120 (2004).  In this case, the 
RO initially adjudicated the claim on appeal in March 2005.  
Review of the claims folder reveals compliance with the VCAA 
and the timing requirements.  In letters dated in July 2004 
and April 2005, the RO specifically advised the Veteran of 
the evidence needed to substantiate her claim brought under 
the provisions of 38 U.S.C.A. § 1151, including an 
explanation of what evidence VA was obligated to obtain or to 
assist the Veteran in obtaining and what evidence or 
information the Veteran was responsible to provide.

In Dingess v. Nicholson, the United States Court of Appeals 
for Veterans Claims (Court) held that, upon receipt of an 
application for a service-connection claim, VA is required to 
review the evidence presented with the claim and to provide 
the Veteran with notice of what evidence not previously 
provided will help substantiate the claim.  19 Vet. App. 473 
(2006); see also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  
Specifically, VA must notify the Veteran of what is required 
to establish service connection and that a disability rating 
and effective date for the award of benefits will be assigned 
if service connection is awarded.  This notice was provided 
to the appellant in March 2006.  

Following both the aforementioned April 2005 and March 2006 
notice, subsequent adjudication of the claims on appeal was 
undertaken in Supplemental Statements of the Case (SSOC) 
issued in June 2007 and January 2010.  Prickett v. Nicholson, 
20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford 
statutory notice to claimant prior to initial rating decision 
by issuing notification letter after decision and 
readjudicating claim and notifying claimant of such 
readjudication in the statement of the case).  In sum, the 
record indicates that the Veteran received appropriate notice 
pursuant to the VCAA.  38 U.S.C.A. § 5103(a).  See Quartuccio 
v. Principi, 16 Vet. App. 183 (2002).

With respect to the duty to assist, the RO has obtained the 
relevant VA and private medical records, specifically 
including all available clinical records relating to the 
March 2004 surgery.  See 38 U.S.C.A. § 5103A(d).  The Veteran 
has also submitted her own statements and contentions for the 
record.  In addition, a VA medical examination and opinion 
was sought in this case which was provided in April 2009 with 
an addendum provided in November 2009.  

The Board finds that as to the claim being decided herein on 
appeal, all necessary development has been accomplished, and 
therefore appellate review may proceed without prejudice to 
the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993). 
Significantly, neither the Veteran nor his representative has 
identified, and the record does not otherwise indicate, any 
additional existing evidence that is necessary for a fair 
adjudication of the claims that has not been obtained.  
Hence, no further notice or assistance to the appellant is 
required to fulfill VA's duty to assist the appellant in the 
development of the claim.  Smith v. Gober, 14 Vet. App. 227 
(2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. 
Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).

Factual Background

The Veteran filed her original compensation claim brought 
under the provisions of 38 U.S.C. § 1151 in July 2004.  She 
maintains that a disorder of the left fourth toe, described 
as deformity and pain of the toe, resulted from surgery 
performed on March 9, 2004, at which time she underwent 
bilateral bunionectomy, exostectomy of the left fifth digit 
and phalangeal head resection of the left fourth digit at the 
VA Medical Center (VAMC) in Mountain Home, Tennessee.

A brief review of the medical history indicates that the 
Veteran was seen by VA in mid-February 2004, with complaints 
of painful bunions of the feet bilaterally and corns on the 
4th and 5th toes on the left foot.  It was also noted that she 
had requested surgery, as her feet were painful and hadn't 
responded to a change of shoes.  Assessments of bilateral 
hallux valgus, hypertrophied head of the proximal phalanx of 
the 4th left toe and exostosis of the left fifth toe were 
made.  The record indicated that the VA Chief of Podiatry had 
discussed surgical procedures of the left 4th and 5th toes to 
include explaining to the Veteran the expected results, 
possible complications, alternatives and convalescence.  It 
was noted that the Veteran had the opportunity to ask 
questions and that operative procedures were scheduled for 
March 9, 2004.  

The file contains a consent form signed by the Veteran and 
her treating VA physician on March 3, 2004.  The form 
describes the procedures to be undertaken on March 9, 2004 as 
injecting anesthesia and cutting bone from the big toe on the 
left and right feet with pin fixation and cutting bone from 
the 4th and 5th toes of the left foot.  The form indicated 
that the indications, risks benefits and alternative 
treatment options had been explained to the Veteran and she 
had been given the opportunity to ask questions.  The form 
indicated that the Veteran freely consented to undergoing the 
treatment without fraud, duress or coercion.  

VA records reflect that on March 9, 2004, the Veteran 
underwent bilateral bunionectomy, exostectomy of the left 
fifth digit, and phalangeal head resection of the left fourth 
digit.  The pre and post-operative diagnoses consisted of: 
bilateral hallux valgus, hypertrophied head of the proximal 
phalanx of the 4th left toe and exostosis of the left fifth 
toe.  The operative report indicated that a 4-5 K-wire was 
placed from the plantar medial to dorsal lateral through the 
head of the metatarsal and retracted until flush with the 
articulating surface.  The K-wire was bent, cut and placed 
flush to the bone and the wound was flushed with copious 
amounts of normal sterile saline.  A sterile dressing was 
applied and the report indicated that the Veteran was 
transferred to the PACU with stable vital signs and vascular 
status intact.  A post-surgical noted dated on September 9, 
2004 specifically indicated that there were no complications 
and that the patient tolerated the procedure well.  The 
Veteran was instructed to return for a follow up in 6 days, 
keep the foot elevated and use a walker when ambulating.  She 
was specifically instructed to contact the hospital if 
symptoms of significant swelling, redness, pain, nausea, 
vomiting, fever or chills occurred.  


VA records show that on March 10, 2004, the Veteran called in 
complaining of radiating left foot pain, and reporting that 
she was not having any right foot problems.  She was seen on 
March 15, 2004, at which time she had no complaints of pain.  
Sutures were described as intact and there were no signs of 
erythema, drainage or infection.  An assessment of 
satisfactory post-operative condition was made, the dressing 
was changed and the Veteran was instructed to return in a 
week.  When seen by podiatry on March 22, 2004, the Veteran 
had complaints of left foot on walking.  There was evidence 
of minimal edema.  Later that day, the Veteran called in 
complaining of constant moderate to severe left foot pain for 
the past week.  When seen on March 29, 2004 there was no 
edema or erythema and range of motion was good and without 
pain or crepitus.  When seen on April 19, 2004, the Veteran 
reported that she as doing well overall, but continued to 
have pain when ambulating for long periods.  She continued to 
complain of left foot and 4th toe swelling and believed that 
she would be ready to return to her normal working activities 
in a week.  

The file contains a medical statement of Dr. B. dated in 
April 2005 indicating that he had been asked by the Veteran 
to review her medical records and provide information 
pertaining to her claim.  The doctor noted a history of left 
foot surgery done by VA in March 2004.  He stated that 
examination of the left foot revealed a mal-positioning of 
the 4th toe, described as held at 30 degrees of dorsiflexion.  
The doctor stated the Veteran reported having pain in the 
left 4th toe following the surgery. 

In April 2006, color photographs of the Veteran's left foot 
were received which appear to show hyper-extension/elevation 
of the 4th left toe, compared to the other toes lying flat.  

A VA examination of the feet was conducted in April 2009 and 
the examination report reflects that the Veteran's medical 
records were reviewed.  A history of foot surgery performed 
by VA with retained K-wire at the left foot operative site 
was noted.  The Veteran's complaints included pain on 
standing and neuritic pain on palpation.  X-ray films 
revealed excellent alignment of the first left toe with 
evidence of retained/buried/bent K-wire at the site of 
palpable pain in the area of a left foot scar.  Cicatrix 
apparently due to K-wire pressure in the area of the scar was 
diagnosed and removal of the K-wire was suggested.    

In November 2009, an addendum was added to the original April 
2009 VA examination report.  It was clarified that X-ray film 
and photographs revealed a soft tissue deformity of the left 
4th toe (reducible) with moderate dorsiflexion interfering 
with some footgear.  It was also noted that the original 
operative site on the proximal interphalangeal joint of the 
left 4th toe was relatively rigid and is straight.  The 
examiner opined that the current manifestations of the left 
4th toe were more likely than not due to the March 2004 
surgery, since the original deformity was corrected at the 
proximal interphalangeal joint.  The examiner further opined 
that there was no indication of any deviation of the standard 
of care for the surgery and observed that the sequelae was 
relatively common from the original surgery, explaining that 
the original deforming force of the extensor digitorum longus 
on the proximal interphalangeal joint was transferred to the 
associated metatarsal phalangeal joint.  

Legal Analysis

The Veteran maintains that surgery performed by the VAMC in 
Mountain Home, TN on March 9, 2004, caused pain and a 
deformity of the left 4th toe, described as the toe sticking 
up and not lying flat, as it reportedly did prior to the 
surgery.  For the reasons that follow, the Board concludes 
that compensation under section 1151 is not warranted.

Title 38, United States Code, Section 1151 provides that 
where a veteran suffers an injury or aggravation of an injury 
resulting in additional disability by reason of VA medical or 
surgical treatment, compensation shall be awarded in the same 
manner as if such disability were service connected.  See 
Anderson v. Principi, 18 Vet. App. 371, 376 (2004); see also 
Kilpatrick v. Principi, 16 Vet. App. 1, 3 (2002).  The 
Veteran does not contend, nor does the evidence reflect that 
consideration under any other theory of entitlement is 
warranted in conjunction with this appeal.


Effective September 2, 2004, the regulations pertaining to 
claims for compensation pursuant to 38 U.S.C. § 1151 filed on 
or after October 1, 1997 were amended.  See 69 Fed. Reg. 
46,426 (Aug. 3, 2004).  Those regulations implemented the 
provisions of 38 U.S.C. § 1151 and were codified at 38 C.F.R. 
§ 3.361.  The RO specifically provided notice of 38 C.F.R. § 
3.361 to the Veteran in the Supplemental Statement of the 
Case issued in June 2007.

Section 1151(a) grants compensation for qualifying 
disabilities to veterans in the same manner as if such 
disability were service-connected, under certain 
circumstances.  See also 38 C.F.R. § 3.361 (2009).  First, 
the disability must be caused by hospital care, medical or 
surgical treatment, or examination furnished the veteran by 
VA, and the proximate cause of the disability must be 
attributable to: (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 that was 
not reasonably foreseeable.  38 U.S.C.A. § 1151(a)(1); 38 
C.F.R. § 3.361(d).  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 or 
death, it must be shown that the hospital care or medical or 
surgical treatment caused the veteran's additional disability 
or death; 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.  See 
38 C.F.R. § 3.361(d)(1) (2009).

Whether the proximate cause of a veteran's additional 
disability or death 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.  See 38 C.F.R. § 3.361(d)(2) (2009).

Second, there must be evidence of additional disability, as 
shown by comparing the veteran's condition before and after 
the VA medical care in question.  38 C.F.R. § 3.361(b).  In 
determining whether disability resulted from disease or 
injury or aggravation of an existing disease or injury 
suffered as a result of VA care, the evidence must show 
actual causation rather than coincidental occurrence.  38 
C.F.R. § 3.361(c)(1).  Finally, the disability must not be 
the result of willful misconduct.  38 U.S.C.A. § 1151(a); 38 
C.F.R. § 3.301(c)(3).

The Board must assess the credibility and weight of all 
evidence, including the medical evidence, to determine its 
probative value, accounting for evidence which it finds to be 
persuasive or unpersuasive, and providing reasons for 
rejecting any evidence favorable to the claimant.  Equal 
weight is not accorded to each piece of evidence contained in 
the record; every item of evidence does not have the same 
probative value.  When all the evidence is assembled, VA is 
responsible for determining whether the evidence supports the 
claim or is in relative equipoise, with the appellant 
prevailing in either event, or whether a preponderance of the 
evidence is against a claim, in which case, the claim is 
denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

In this case, the medical evidence indicates that prior to 
the March 2004 surgery, hypertrophied head of the proximal 
phalanx of the left 4th toe was diagnosed.  The surgical 
procedures which took place at a VAMC on March 9, 2004 
included phalangeal head resection of the left 4th toe, 
intended to correct the original deformity/disability.  Post 
surgery, X-ray films and photographs reveal evidence of a 
soft tissue deformity of the left 4th toe (reducible) with 
moderate dorsiflexion fixation, which has been causally 
attributed to the March 2009 surgery.  

To establish causation, the competent 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 now has an additional 
disability does not establish a causal relationship between 
the two.  See 69 Fed. Reg. 46,433-35, codified at 38 C.F.R. 
§ 3.361(c)(1) (2009).  The evidence in this case appears to 
show that a different deformity/disability of the 4th toe 
surfaced after and a result of the March 2004 surgery, 
replacing the original disability/deformity of the 4th left 
toe which existed prior to the surgery.  As such, the 
currently claim deformity/disability of the left 4th toe does 
appear to represent additional disability which was the 
result of the VA treatment at issue.

Accordingly, the critical inquiries involve the 
foreseeability of the additional disability and the standard 
of care provided by VA.

Whether the proximate cause of a veteran's additional 
disability or death 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.

Under 38 C.F.R. § 17.32(b), except as otherwise provided, all 
patient care furnished under title 38 U.S.C. shall be carried 
out only with the full and informed consent of the patient 
or, in appropriate cases, a representative thereof.  In order 
to give informed consent, the patient must have decision- 
making capacity and be able to communicate decisions 
concerning health care.

Under 38 C.F.R. § 17.32(c), informed consent is the freely 
given consent that follows a careful explanation by the 
practitioner to the patient or the patient's surrogate of the 
proposed diagnostic or therapeutic procedure or course of 
treatment.  The practitioner, who has primary responsibility 
for the patient or who will perform the particular procedure 
or provide the treatment, must explain in language 
understandable to the patient or surrogate the nature of a 
proposed procedure or treatment; the expected benefits; 
reasonably foreseeable associated risks, complications or 
side effects; reasonable and available alternatives; and 
anticipated results if nothing is done.  The patient or 
surrogate must be given the opportunity to ask questions, to 
indicate comprehension of the information provided, and to 
grant permission freely without coercion.  The practitioner 
must advise the patient or surrogate if the proposed 
treatment is novel or unorthodox.  The patient or surrogate 
may withhold or revoke his or her consent at any time.

Under 38 C.F.R. § 17.32(d), the informed consent process must 
be appropriately documented in the medical record. In 
addition, signature consent is required for all diagnostic 
and therapeutic treatments or procedures that require the use 
of sedation, anesthesia or narcotic analgesia; are considered 
to produce significant discomfort to the patient; have a 
significant risk of complication or morbidity; require 
injections of any substance into a joint space or body 
cavity; or involve testing for Human Immunodeficiency Virus 
(HIV).

In this case, the most significant evidence pertaining to the 
matter of foreseeability consists of the opinion provided by 
a VA examiner in 2009, combined with documentation of the 
Veteran's informed consent to the surgery.  In November 2009, 
a VA examiner explained the sequelae shown following the 
March 2004 surgery was relatively common from the original 
surgery, explaining that the original deforming force of the 
extensor digitorum longus on the proximal interphalangeal 
joint was transferred to the associated metatarsal phalangeal 
joint.  This evidence indicates that the residuals which 
occurred after the March 2004 were reasonably foreseeable, as 
opposed to being unexpected.

Further supporting a finding that the manifestations which 
occurred after the March 2009 were reasonably foreseeable is 
the consent form on file which was signed by the Veteran and 
her treating VA physician on March 3, 2004.  This form 
indicated that the Veteran was made aware of the reasons for 
the surgery being undertaken, the alternatives in terms of 
care, the risks, and the benefits associated with the 
recommended care.  This form indicated that the Veteran 
understood all of these elements and consented to the 
recommended procedure.  While the specific risks and possible 
consequences/residuals of the surgery were not fully 
enumerated, the document certified that the Veteran's VA 
treatment provider(s) explained the treatment plan to the 
Veteran, including the nature of the treatment and the 
expected risks, benefits, and alternatives, and reflects that 
the Veteran understood and accepted the possible risks of the 
surgery as evidenced by her signature on the consent form.  
Thus in a general sense, she was made aware of the 
possibility that the surgery might not be entirely successful 
and that it was reasonably foreseeable that the surgery could 
result in some residual manifestations/symptoms.    

In addition, since a section 1151 claim is a claim for 
disability compensation, as with a claim for service 
connection, a veteran not only is required to establish that 
additional disability occurred following VA treatment but 
also must submit sufficient evidence of a causal nexus 
between that event and his or her current disability, i.e. 
that additional disability was due to negligent or otherwise 
substandard VA medical care, to be ultimately successful on 
the merits of the claim.  See Wade v. West, 11 Vet. App. 302, 
305 (1998); see also Jimison v. West, 13 Vet. App. 75, 77-78 
(1999) (claim for benefits under 38 U.S.C. § 1151 must be 
supported by medical evidence of additional disability that 
resulted from VA hospitalization or medical or surgical 
treatment).

In this case, the record is entirely negative for any 
competent medical evidence establishing or even suggesting 
fault or negligence on the part of VA in providing care to 
the Veteran in conjunction with the surgery performed on 
March 9, 2009.

The Veteran maintains that the determination of VA treating 
personnel to leave a K-wire in her left foot in conjunction 
with the March 9, 2004 surgery, is indicative of fault, 
negligence or inadequate care.  While the Veteran is correct 
in stating that the K-wire was retained in her foot following 
the surgery, there has been no competent medical evidence or 
opinion presented for the record which supports the Veteran's 
primary contention that the care provided by VA in March 2004 
amounts to or was evidenced by carelessness, negligence, lack 
of proper skill, error in judgment, or a similar instance of 
fault.  The file contains a medical opinion provided in 
November 2009 specifically addressing this matter, at which 
time a VA DPM (Doctor of Podiatric Medicine) reviewed the 
file and determined that there was no evidence of deviation 
from the standard of care for the March 2004 surgery shown in 
this case.  The file contains no medical evidence or medical 
opinion to the contrary.  

In essence, the only evidence of record supporting the 
Veteran's contentions and claim with respect to the alleged 
inadequate standard of care by VA is her own lay opinion.  
The Veteran, however, has not been shown to possess the 
requisite medical training, expertise, or credentials needed 
to determine the appropriate standard of care or to assess 
the lack thereof.  As such, this opinion lacks probative 
weight.  In addition, the Veteran's opinion is not consistent 
with a medical opinion of record specifically sought to 
address the matter of whether there was any indication of 
fault, negligence or an inadequate standard of care in 
conjunction with the surgery undertaken by VA personnel in 
March 2004.  As such, the November 2009 VA medical opinion is 
the most probative evidence as pertains to this issue.  See 
Davidson v. Shinseki, 581 F.3d 1313, (Fed Cir. Sept. 14, 
2009); Jandreau v. Nicholson, 492 F.3d 1372 1377 (Fed. Cir. 
2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

The Board finds that the preponderance of the evidence is 
against the Veteran's 38 U.S.C.A. § 1151 claim.  Regardless 
of the question of causation, the Board observes that the 
current provisions of 38 U.S.C. § 1151 and 38 C.F.R. § 3.361, 
applicable in this case, require a showing of carelessness, 
negligence, lack of proper skill, error in judgment, or a 
similar instance of fault on the part of VA treatment 
providers.  However, the record in this case contains no 
competent evidence or opinion which indicates or even 
suggests that the care provided by VA in March 2004 in 
conjunction with the surgical procedures of the feet 
undertaken at that time was in any way indicative of 
carelessness, negligence, lack of proper skill, error in 
judgment, or a similar instance of fault.  Moreover, the 
record indicates that the occurrence of the additional 
disability claimed, was foreseeable.  Consequently, the 
benefit-of- the-doubt rule does not apply, and the claim must 
be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990).




							[Continued on Next Page]
ORDER

Entitlement to compensation under the provisions of 38 
U.S.C.A. § 1151 for a disorder of the left fourth toe, is 
denied.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs