Citation Nr: 1112070 Decision Date: 03/25/11 Archive Date: 04/06/11 DOCKET NO. 09-31 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for bilateral above the knee amputations due to VA treatment in September and October 2006. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from May 1974 to May 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, in which the RO denied entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for bilateral above the knee amputations. In October 2010, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing. A transcript of that hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board's review of the claims file reveals that further action on the claim on appeal is warranted. The record reflects that the Veteran underwent bilateral above the knee amputations at the West Roxbury VA Medical Center (VAMC) in October 2006. VA treatment records currently associated with the claims file reflect that she was hospitalized at the West Roxbury VAMC from September 8, 2006 to September 18, 2006 for an ulcerative colitis flare. A summary of that hospitalization indicates that, on September 14, 2006, she appeared to have lower extremity edema, right greater than left. Lower extremity non-invasive tests (LENIs) were negative, and the edema was noted to be likely secondary to steroid use. The Veteran was discharged on a slow prednisone taper over eight weeks. VA treatment records associated with the claims file reflect that two weeks later, the Veteran was admitted to the West Roxbury VAMC on October 2, 2006. She presented to that facility on October 1, 2006 with the sudden onset of bilateral lower extremity pain and weakness. She described pain, decreased sensation, and decreased motor strength, bilaterally, but denied a history of claudication. Her admission medications included prednisone. CT scan of the chest, abdomen, and pelvis revealed total acute thrombosis of the right superficial femoral artery at its origin, segmental occlusion at the left common femoral artery with reconstitution of left superficial femoral artery, and thrombosis of the left popliteal artery. She was taken to the operating room for thrombectomy and four compartment fasciotomy, bilaterally. The summary of her October 2006 hospitalization reflects that, thereafter, she required aggressive medical therapy and hydration for rhabdomyolosis, and was taken back to the operating room for bilateral wound washout. She underwent bilateral above the knee amputations due to extensive necrosis of the lower extremities. The summary of the October 2006 hospitalization notes that there was no clear etiology identified which could account for spontaneous thrombosis of the femoral arteries which ultimately led to bilateral above the knee amputations. In her February 2008 claim, the Veteran asserted that, after her hospitalization in September 2006, she returned about a week later because she still felt ill, and was told that her white blood count was up, but that it might be due to her colitis, so she was sent home and told to continue her medication. She added that she then returned about a week later because her legs were turning white and causing great pain. She reported that she was put into a coma for about 10 days and, when she awoke, her legs had been amputated because of poor circulation. She argued that, had she been admitted to the VAMC after her initial stay in September 2006, and, had venodyne boots been prescribed, she would not have had a problem with circulation in her legs. Compensation under 38 U.S.C.A. § 1151 shall be awarded for a veteran's qualifying additional disability in the same manner as if such additional disability was service connected. A disability is a qualifying additional disability if it 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 VA. In addition, the proximate cause of the disability must be either 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.A. § 1151 (West 2002 & Supp. 2010). To determine whether a veteran has additional disability, VA compares the veteran's condition immediately before the beginning of hospital care, medical or surgical treatment, upon which the claim is based, to the veteran's condition after such care or treatment has stopped. 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). 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 addition to a showing of additional disability, there must be evidence showing either that VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that VA furnished treatment without the informed consent of the veteran, in compliance with 38 C.F.R. § 17.32. Minor deviations from the 38 C.F.R. § 17.32 requirements that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express or implied as specified under 38 C.F.R. § 17.32(b), as in emergency situations. 38 C.F.R. § 3.361(d)(1). 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. 38 C.F.R. § 3.361(d)(2). Review of the claims file reflects that all pertinent VA treatment records have not been obtained. In this regard, while summaries of the Veteran's September and October 2006 hospitalizations are of record, complete records from these periods of hospitalization have not been associated with the claims file. Significantly, the operative report regarding the bilateral above the knee amputations is not of record. In addition, the record reflects that the Veteran's proxy consented to the amputations, as she was unable to do so; however, no consent documents are currently associated with the claims file. Moreover, despite her assertion that she returned to the West Roxbury VAMC between September 18, 2006 and October 1, 2006, no such record of treatment is currently associated with the claims file. While, in April 2008, the RO requested records from the West Roxbury VAMC, from September 2006 to the present, the records thereafter associated with the claims file are dated from September 2007 to April 2008. As complete records of VA treatment since September 2006 are potentially pertinent to the appeal and within the control of VA, they should be obtained and associated with the claims file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In particular, the AMC/RO should obtain the Veteran's complete medical records, including all handwritten reports and signed consent documents, dated in September and October 2006, from the West Roxbury VAMC. In addition, the record reflects that, after her October 2006 hospitalization at the West Roxbury VAMC, the Veteran was transferred to the Brockton Transitional Care Unit, where she remained until discharge in September 2007. Complete records of this treatment have not been associated with the claims file. Significantly, during the October 2010 hearing, the Veteran testified that, on admission to the Brockton VAMC for rehabilitation, a therapist told her that the loss of her legs had been caused by an infection, so, she was diagnosed with lupus; however, she stated that, also during her period of rehabilitation, a nurse at the Brockton VAMC, C.F., informed her that she lost her legs due to a staph infection incurred at the West Roxbury VAMC in September 2006. Accordingly, on remand, all outstanding pertinent treatment records from the Brockton VAMC, should be obtained and associated with the claims file. The Board notes that, in September 2008, a VA physician reviewed the claims file and stated that he could find no entry in the electronic file from the time the Veteran was discharged on September 18, 2006 until her return on October 1, 2006. He opined that she received excellent care throughout her stays at the hospital, and indicated that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault was not documented in any notes he reviewed. He added that the staff vascular surgeon was "most attentive" to the Veteran and wrote his own notes in the chart from October 1, 2006 until well after the above the knee amputations. The physician also noted that the possibility of amputation was discussed with the Veteran's medical proxy, as the Veteran was on a ventilator and could not be aroused to sign permissions. He concluded by opining that the bilateral above the knee amputations were not the result of any action or failure to act on the part of VA. While the physician indicated that he reviewed the electronic file, in light of the fact that all pertinent VA treatment records have not been associated with the claims file, the Board is not satisfied that the September 2008 opinion was based on review of all pertinent evidence. Moreover, as discussed above, the Veteran has asserted that her above the knee amputations are the result of VA's failure to admit her for treatment between September 18, 2006 and October 1, 2006, and the failure to prescribe venodyne boots. Notably, the Veteran has medical training, as her DD 214 reflects that her military occupational specialty (MOS) was medical specialist, and the record reflects that she worked as a radiological technician following separation from service. The Veteran's October 2010 testimony also suggests that her bilateral above the knee amputations may have been the result of infection incurred during VA hospitalization. Her representative also suggested that the amputations may have been caused by medication administered during that hospitalization, specifically, prednisone. While the physician who provided the September 2008 opinion indicated that he could find no record of the Veteran returning for VA treatment between September 18, 2006 and October 1, 2006, he did not specifically address the assertion that she should have been prescribed venodyne boots, nor did he specifically address any potential infection at the VAMC or reaction to medication. Because VA undertook to obtain a VA medical opinion to evaluate the claim for compensation pursuant to 38 U.S.C.A. § 1151, the Board must ensure that such an opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Stefl v. Nicholson, 21 Vet. App. 120 (2007). In light of the foregoing, the Board finds that, after outstanding records have been associated with the claims file, the claims file should be returned to the physician who provided the September 2008 opinion for a supplemental opinion. The AMC/RO should arrange for the Veteran to undergo VA examination only if the physician who provided the September 2008 opinion is not available, or the designated physician is unable to provide the requested opinion without examining the Veteran. Finally, the Board notes that, a November 2006 record of VA treatment reflects that the Veteran's sister was in the process of gathering information for the Veteran to apply for Social Security Administration (SSA) benefits. A September 2007 record of treatment reflects that the Veteran was receiving Social Security Disability Insurance (SSDI). While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hence, when VA is put on notice of the existence of SSA records, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). As the Veteran's SSA records have not previously been associated with the claims file and may be pertinent to the claim on appeal these records should be requested. Accordingly, the case is REMANDED for the following action: 1. All outstanding VA treatment records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. Of particular interest are any outstanding records of treatment from the West Roxbury VAMC (to include complete records from the September 2006 and October 2006 hospitalizations-including all handwritten reports and signed consent documents, nursing notes, physician's notes, and operative reports-as well as any records of emergency room treatment between September 18, 2006 and October 1, 2006) and any outstanding records of treatment from the Brockton VAMC, to include treatment in the Transitional Care Unit from October 2006 to September 2007. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and her representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 2. The AMC/RO should obtain from the SSA a copy of any decision regarding the Veteran's claim for disability benefits pertinent to the claim on appeal, as well as copies of all medical records underlying those determinations. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, the AMC/RO should forward the claims file to the physician that provided the September 2008 opinion, if available, for a supplemental medical opinion. The claims folder must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report of the physician. In light of any evidence added to the claims file, the examiner should render an opinion, consistent with the record and sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's bilateral above the knee amputations are the result of VA medical treatment or failure to treat. If so, he should also opine as to whether the proximate cause of such disability was (a) carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA; or (b) an event not reasonably foreseeable. In rendering the requested opinion, the examiner should consider and address whether medication administered by VA or the failure to prescribe venodyne boots resulted in the bilateral above the knee amputations. He should also address whether there is any evidence that the amputations resulted from infection incurred at the West Roxbury VAMC. In addition, if the evidence associated with the claims file verifies that the Veteran presented to the West Roxbury VAMC emergency room between September 18, 2006 and October 1, 2006, the examiner should address whether failure to admit her for treatment at that time resulted in the bilateral above the knee amputations. If further examination of the Veteran is deemed necessary, the AMC/RO should arrange for the appellant to undergo VA examination to obtain the above-noted opinion. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and a notation to the effect that review of the claims file took place should be included in the report of the physician. The examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on her claim. 5. After ensuring that the development is complete, re-adjudicate the claim. If not fully granted, issue a supplemental statement of the case before returning the claim to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must 2010). _________________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals 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) (2010).