Citation Nr: 1136814 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 08-27 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 2002) for polyneuropathy of the left foot as residuals of surgery due to treatment by the Department of Veterans Affairs (VA). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from February 1951 to May 1952 and from July 1953 to January 1959. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This case was previously before the Board in November 2010, wherein it was remanded for additional due process considerations and development. The case was returned to the Board for appellate consideration. The Board notes that additional statements and a copy of November 2010 private medical record were received from the Veteran following issuance of the most recent, supplemental statement of the case. The additional statements and private medical record have not been considered by the RO. However, the Board notes that the statements are essentially duplicative of contentions previously of record, and that the private medical record is not relevant as to the Veteran's contentions. As such, the Veteran is not prejudiced by the Board's consideration of the appeal without remand for RO consideration of the additional submission. Soyini v. Derwinski, 1 Vet. App. 540 (1991); Bernard v. Brown, 4 Vet. App. 384 (1993). Further, a statement from the Veteran indicates that the Veteran intended that the information be sent to the Board for appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran does not have additional permanent disability, including polyneuropathy of the left foot, as a result of careless or negligent VA treatment. CONCLUSION OF LAW The requirements for compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of surgery, including polyneuropathy of the left foot, as a result of VA treatment have not been met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2010). Notice Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA issued a VCAA notice letter in July 2007, from the agency of original jurisdiction (AOJ) to the appellant. This letter explained the evidence necessary to substantiate the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence, as well as explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims held, in part, that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Duty to Assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment and examination. Additionally, the claims file contains the Veteran's own statements in support of his claim. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The record shows that the Veteran has been examined by VA in connection with his claim. The Board has reviewed the examination reports, and finds that they are adequate for the purpose of deciding the issue on appeal. Although the Board acknowledges the contention of the Veteran's representative that the RO failed to obtain a VA examination by an "appropriate physician" as stated in the Board's remand, and that the December 2010 VA examination by a nurse practitioner is insufficient, the Board finds that there was substantial compliance with the Board's November 2010 remand directives and the Board may proceed with review. The Board points out that the December 2010 VA examination report answers all of the questions posed in the November 2010 directives; the VA examiner undertook a full and thorough review of the Veteran's claims file and VA medical records, responded to all questions posed by the Board, and accompanied all of his conclusory opinions with a complete rationale and reference to pertinent medical evidence. Stegall v. West, 11 Vet. App. 268 (1998). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Legal Criteria Under the applicable VA laws and regulations, when a veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by VA, disability compensation shall be awarded in the same manner as if such disability or death was service connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. The law requires not only that the VA treatment in question resulted in additional disability, but also that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the surgical treatment, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b) (2010). 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) (2010). 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) (2010). 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. 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) (2010). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is 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) (2010). Analysis The Veteran contends that he is entitled to compensation under 38 U.S.C.A. § 1151 for polyneuropathy of the left foot, claimed as due to VA lack of proper care/negligence in providing surgical treatment in September 2004. He specifically contends that VA surgeons provided negligent and inappropriate treatment at a VA hospital in conjunction with left tarsal tunnel release surgery in September 2004, and a subsequent surgery in July 2005 for removal of adhesions. Nonetheless, although the Veteran believes otherwise, the medical evidence in this case does not show that he sustained damage or additional injury as a result of his VA treatment in question from negligence, lack of proper care or diagnosis. The Board acknowledges that the Veteran experienced polyneuropathy of the left foot following his September 2004 tarsal tunnel release surgery and underwent a subsequent July 2005 surgery for adhesion and entrapment of a nerve, but points out that the Veteran was provided with information about all risks and benefits of his procedures. Likewise, July 2005 VA medical records explain that the Veteran's second surgery was necessitated by adhesions and scarring from his September 2004 tarsal tunnel release surgery, requiring a release of the entrapped nerve; adhesions and scarring were noted as being normal side effects of surgery. Significantly, the December 2010 VA examiner found that the Veteran likely had polyneuropathy of the left foot prior to and following his surgeries; the VA examiner concluded that the Veteran's tarsal tunnel surgery and subsequent surgery for the adhesions did not cause or contribute to the Veteran's polyneuropathy, as it was a type of peripheral neuropathy unrelated to the plantar fasciitis and left heel complaints for which the Veteran underwent the surgery. In this regard, the VA examiner related that the Veteran's polyneuropathy of the left foot was not caused by carelessness, negligence, lack of proper skill, or error in judgment on the part of VA in their surgical treatment or care of the Veteran; the VA examiner concluded that the Veteran's polyneuropathy did not result from VA treatment or lack of treatment in September 2004 or July 2005. The Board acknowledges that the VA examiner stated that the Veteran's surgeries were improperly administered, but points out that a cumulative review of the VA examiners statements clearly demonstrates that the VA examiner's conclusion is that the Veteran's polyneuropathy was not the result of an improperly administered surgery in 2004 or 2005. As the VA examiner repeatedly states, the facts and circumstances of the case, as well as the Veteran's assertions and history, clearly demonstrate that there was no evidence that the Veteran was disabled or harmed by the surgical procedure. According to the December 2010 VA examiner, there is no medical evidence that the Veteran's polyneuropathy was the result of the Veteran's surgeries; the VA examiner noted that adhesions were the common result of the tarsal tunnel release and that the medical evidence shows that the adhesions were clearly remedied by the July 2005 surgery. The VA examiner, as previously stated, clearly concluded that the Veteran's polyneuropathy was the result of peripheral neuropathy, unrelated to the left heel pain and plantar fasciitis that preceded the Veteran's 2004 surgery. In short, there is no evidence of record that the Veteran's treating physicians were careless or negligent during the Veteran's surgical treatment for plantar fasciitis, nor did they lack proper skill to perform or make an error in judgment when determining that surgical intervention was required. Moreover, there is no evidence of record that the Veteran's treating providers at VA deviated from the appropriate standard of care or were negligent. The Board also notes that surgical records indicated that both operations proceeded normally, and that the results were as expected. The December 2010 VA examiner further found that the Veteran's surgical treatment for left heel pain and plantar fasciitis was appropriate. Thus, there is no medical evidence showing the Veteran suffered additional disability as a result of carelessness, negligence, lack of proper skill, or error in judgment on the part of VA doctors. Therefore, the only evidence suggesting the Veteran's current complaint of polyneuropathy of the left foot is related to VA medical treatment comes from him personally. However, he has not been shown to possess the requisite training or credentials needed to render a competent opinion as to medical causation. As noted above, surgical treatment cannot cause an injury for which the treatment was furnished unless it is shown that VA's failure to timely diagnose and properly treat the disease or injury proximately caused the additional disability. See 38 C.F.R. § 3.361(c)(1). There also is no evidence that the proximate cause of the Veteran's current polyneuropathy of the left foot was the surgical treatment that he received in September 2004 or July 2005 from a VA Medical Center. See 38 C.F.R. § 3.361(d). In summary, the Board finds that entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for polyneuropathy of the left foot, claimed as due to VA lack of proper care/negligence in providing surgical treatment in September 2004 and July 2005, is not warranted. As there is a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for polyneuropathy of the left foot, as residuals of surgery, due to treatment at a VA Medical Center, is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs