Citation Nr: 1237450 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 10-21 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for left below the knee amputation due to VA treatment. REPRESENTATION Appellant represented by: Francis A. Considine, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from April 1979 to June 1998. This matter comes to the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which denied entitlement to compensation under 38 U.S.C.A. § 1151 for left below the knee amputation due to VA treatment. In July 2012, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing at the RO. The issue of a claim to reopen service connection for implant of an automatic cardiac defibrillator has been raised by the record via a statement received on September 17, 2009, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The VA procedure to remove a cyst from the left ovary in April 2005 proximately caused the Veteran's subsequent left below the knee amputation and the amputation was an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for VA compensation under 38 U.S.C.A. § 1151 for left below the knee amputation are met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.361 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board grants entitlement to benefits pursuant to 38 U.S.C.A. § 1151 for left below the knee amputation due to VA treatment. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Veteran's claim for 38 U.S.C.A. § 1151 benefits was submitted in 2008. For claims filed on or after October 1, 1997, the provisions of 38 U.S.C.A. § 1151 require that entitlement to benefits for any injury or disease resulting from VA treatment be established by proof of fault or accident on the part of VA. 38 U.S.C.A. § 1151 (West 2002); see VAOPGCPREC 01-99 (February 16, 1999). Compensation shall be awarded for a qualifying additional disability or death in the same manner as if such additional disability or death was service-connected. A disability or death is a qualifying additional disability if the disability or death was not the result of the veteran's willful misconduct and (1) the disability or death 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 or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002). VA regulations governing the adjudication of claims for benefits under 38 U.S.C.A § 1151(a) were amended, effective September 2, 2004. 69 Fed. Reg. 46,426 (Aug. 3, 2004) (codified at 38 C.F.R. § 3.361 ). The new regulation implements the current provisions of 38 U.S.C.A. § 1151 . The regulations have no retroactive effect and, in any event, merely implement existing law. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003; 69 Fed. Reg. 25179 (2004). The RO considered the new regulation in April 2010 and the Veteran had opportunities to submit evidence before and after that decision. Therefore, the Board finds the Veteran is not prejudiced by this decision. Bernard v. Brown, 4 Vet. App. 384 (1993). To determine whether additional disability exists within the meaning of § 1151, the veteran's condition immediately prior to the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based is compared to his or her 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). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). 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). Additional disability or death 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). The proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. 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, medical or surgical treatment, or examination caused the veteran's additional disability or death (as explained in paragraph (c) of this section); 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, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations. 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. 38 C.F.R. § 3.361(d). 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. The Veteran asserts that she underwent a left below the knee amputation due to a surgery that was performed at the VAMC in Hampton, Virginia in April 2005. On her claim she stated that she lost her leg due the negligence of the surgeon and that she originally went to have a cyst removed from her ovary. She noted that the surgeon cut her iliac artery and she ended up losing her leg from these complications. The Veteran's attorney submitted a statement in September 2009 along with the notice of disagreement that the Veteran went in for laparoscopic surgical removal of a large cyst on her left ovary at the VAMC in Hampton in April 2005. In the course of performing the laparoscopy a VA surgeon perforated the Veteran's bowel while entering the Veteran's pelvis. She later underwent surgery to repair the tear in her colon and remove her left ovary in April 2005. In the course of removing the ovary the surgeon lacerated the Veteran's left external iliac artery. There was an attempt to repair the artery but the Veteran suddenly developed thrombosis and a cold left foot. She was transferred to Mary Immaculate Hospital where she underwent further treatment in attempts to save the leg, but the leg continued to thrombose in spite of Heparin and she was found to have Heparin antibodies. Due to extensive time with her left foot not having blood supply she developed gangrene and underwent a left below the knee amputation in May 2005. The Veteran submitted testimony at the July 2012 Board hearing regarding her VA treatment in April 2005 and subsequent private hospital treatment in May 2005. She said that when they explained the risks to her she was told the most that would happen is that she would end up with a colostomy bag. She testified that she was never told anything about possibly having her artery cut or losing her leg. She also stated that she was not told about the risk of Heparin drug reaction or Heparin-induced thrombocytopenia. She noted that she never had any circulatory problems prior to her surgery and submitted pictures of her left foot prior to the surgery and then after the foot lost circulation. She stated that she did everything the doctors told her to and that the amputation was not due to her conduct. She went on to testify that it was her belief that the heparin-induced thrombocytopenia with resultant left below the knee amputation was not an event reasonably foreseeable as a result of a procedure to remove an ovarian cyst. The treatment in question involves a laparoscopy oophorectomy that was performed on April 18, 2005 at the VAMC in Hampton. Severe omental adhesions with small bowel adhesion and a left pelvic mass covered by sigmoid colon were found. The plan was to schedule another surgery for left salpingoophorectomy laparotomy lysis of bowel adhesions, stent placement, and possible colostomy. The next day, April 19, 2005, the risks for surgery were explained to the Veteran, which included bleeding, infection, death, anastomotic dehiscence, the need for further surgery, and injury to the surrounding structures. The informed consent was reportedly signed and witnessed. During the procedure on April 20, 2005, the Veteran reportedly had a left iliac injury. On April 21, 2005 it was noted that the Veteran had a slight delay in capillary refill on the left lower extremity and she was transformed to Mary Immaculate for angiography and vascular surgery if needed. A May 2005 consultation report from Mary Immaculate Hospital notes that the Veteran was admitted initially at the VA Hospital in Hampton for a large ovarian tumor. This was surgically removed on April 20, 2005. In the setting of this surgery there was a left external iliac artery, which the tumor was apparently adherent to. There was an attempt to repair the artery but she subsequently developed thrombosis and a cold left foot on the first postoperative night. She was transferred to Mary Immaculate Hospital and underwent angiography and then a position graft was patent but she had thrombosis on the femoral and distal arteries on the left side. She was taken back to the operating room and underwent thrombectomy and subsequent femoral popliteal bypass grafting. She again developed coldness of the foot and was taken back to the operating room for thrombectomy subsequent to this. Given the presence of persistent thrombosis despite Heparin therapy, heparin antibodies were tested and were positive. Hematology/oncology was consulted and felt that this was a false positive, as she had no evidence of thrombocytopenia throughout the course of her hospital stay. She subsequently underwent a left below-knee amputation on May 11, 2005. An undated medical opinion was subsequently provided to address whether VA medical care resulted in additional disability and if so, whether the disability was due to negligence on the part of the medical professionals or without the Veteran's informed consent, or whether the proximate cause was an event not reasonably foreseeable. The Chief of Surgery at the VAMC in Hampton noted that there was no evidence that the standard of care was not followed during the surgery to remove the Veteran's ovary and that the Veteran would most likely have had a good outcome if she had not developed heparin-induced thrombocytopenia. The physician noted that there was no evidence that the Veteran did not receive adequate preoperative informed consent, as a scanned copy of the consent was available in the chart. The physician also found that there was no evidence that the Veteran's Heparin-induced thrombocytopenia could have been predicted. The primary hurdle in asserting a claim for benefits pursuant to the provisions of 38 U.S.C.A. § 1151 is that there is an additional disability that was caused by VA treatment. The medical evidence shows that the Veteran's surgery to remove a cyst on her left ovary at the VA hospital in Hampton eventually lead to her below the left knee amputation. The iliac artery was damaged during the procedure to remove the cyst on the left ovary, as the cyst was apparently adherent to the iliac artery. She was subsequently administered Heparin and during the course of this treatment developed Heparin-induced thrombocytopenia, which eventually lead to her having to have her left leg amputated below the knee due to the lack of blood circulating in the foot for such a long period of time. Thus, the Veteran has cleared the first hurdle in substantiating a claim pursuant to the provisions of 38 U.S.C.A. § 1151, as the treatment provided by VA clearly resulted in her left below the knee amputation. The medical evidence does not establish that the Veteran's left below the knee amputation was a result of 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. The Chief of Surgery at the VAMC in Hampton noted that there was no evidence that the standard of care was not followed during the surgery to remove the Veteran's ovary. The medical evidence also does not show that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or furnished the hospital care, medical or surgical treatment, or examination without the Veteran's informed consent, as the informed consent is of record. However, the medical evidence does establish that the Veteran's left below the knee amputation was an event not reasonably foreseeable. The Veteran went in to have her left ovary removed. The informed consent record notes that some of the risks were explained to her but nothing along the lines of the possibility of losing her left leg was mentioned. The Veteran also testified that she was never told that she could possibly lose her leg as a result of the procedure. The Chief of Surgery at the Hampton VAMC also found that there was no evidence that the Veteran's Heparin-induced thrombocytopenia (which ultimately caused her to lose her leg) could have been predicted. These findings show that the Veteran losing her left leg below the knee was an event not reasonably foreseeable for a procedure to remove a cyst from the left ovary. The Chief of Surgery at the VAMC in Hampton has found that this could not have been predicted. Thus, it is reasonable to deduce that a reasonable health care provider would not have considered the Heparin-induced thrombocytopenia and resultant left below the knee amputation to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d). Moreover, the risk was not the type of risk that was disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. Therefore, the evidence shows that the VA procedure to remove a cyst from the left ovary in April 2005 proximately caused the Veteran's subsequent left below the knee amputation and that the amputation was an event not reasonably foreseeable. In light of the above, VA compensation under 38 U.S.C.A. § 1151 for left below the knee amputation is warranted. ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for left below the knee amputation due to VA treatment is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs