Citation Nr: 1300768 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 10-28 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to compensation under the provisions of 38 C.F.R. § 1151 for residuals of a right upper extremity amputation and a cerebrovascular accident. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1979 to October 1981. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office in Wilmington, Delaware (RO). The record shows that the Veteran was notified of the November 2007 rating decision that denied the Veteran's current claim on November 27, 2007. The RO mailed him a statement of the case on May 11, 2010. The Veteran's substantive appeal, VA Form 9, was received on July 13, 2010. Although 38 U.S.C.A. § 7105 (West 2002) provides that a claimant will be afforded a period of 60 days from the date the statement of the case is mailed to file the formal appeal, the 60-day period is not a jurisdictional bar to the Board's adjudication of a matter. VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. See Percy v. Shinseki, 23 Vet. App. 37, 44-45 (2009). In this case, subsequent to the RO's receipt of the Veteran's VA Form 9, a Travel Board hearing was held before the Board at the RO in April 2011. The Board finds, therefore, that VA has implicitly waived the lack of timeliness of receipt of the Veteran's substantive appeal, and the Board will proceed with adjudication of the appeal. Id. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND In general, when a claimant experiences additional disability as the result of hospital care, medical or surgical treatment, or examination furnished by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151. The provisions of 38 U.S.C.A. § 1151 provide that when there is no willful misconduct by a Veteran, disability resulting from VA hospital care furnished the Veteran will be compensated in the same manner as if service-connected, if the disability was caused by (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care or (B) an event which is not reasonably foreseeable. See also 38 C.F.R. §§ 3.358, 3.361. The Veteran contends that benefits are warranted under the provisions of 38 U.S.C.A. § 1151, for residuals of a CVA, to include right upper extremity amputation and paralysis on the left side, which resulted from treatments provided by the VA in March 2002. Specifically, the Veteran claims that VA's delay in diagnosing his vascular impairment resulted in amputation of the right upper extremity and a CVA that caused paralysis on the left side. During his April 2011 hearing before the Board, the Veteran testified that he injured his arm and head and was knocked unconscious for about five minutes when he slipped and fell on ice. He stated that he went to the VA emergency in Wilmington, Delaware after experiencing severe pain in the right arm, was treated for frostbite for a day and a half, and then was transferred the VA Medical Center (VAMC) in Philadelphia, Pennsylvania where he continued to receive treatment for frostbite for another day and a half. He further stated that when he was transferred to the Hospital of the University of Pennsylvania (HUP), he was finally checked for the vascular system and cardiovascular aneurysm was found in his right hand; however, it was too late to dissolve the condition because his hand was already dead and full of gangrene and he was left with no recourse but to have the right hand amputated. He also claimed that during the operation for amputation, it was noted that he had a stroke and that he was paralyzed on the left side. The medical evidence of record shows that the Veteran was seen with a chief complaint of right hand pain and swelling in the Emergency Department at the Wilmington VAMC on February 21, 2003. He related that he was climbing over a fence the previous night when he fell and landed on his right hand. The assessment was a crush injury to the right hand and digits with discoloration secondary to cyanosis and/or ecchymosis. The examiner noted that given the coolness of the digits and hand, vascular insufficiency could not be ruled out. The Veteran was emergently arranged by the chief of surgery at Wilmington VAMC to transfer to the vascular surgery service at the Philadelphia VAMC. On the same day, a Philadelphia VAMC surgeon note reflects that the Veteran was transferred from the Wilmington VAMC in the evening. The VA surgeon noted that the Veteran's hand was severely swollen, painful and cool with ischemic appearing fingers. It was noted that the Veteran had be transferred to the HUP as soon as possible because the Philadelphia VAMC did not have the capability of performing microvascular hand surgery. HUP records dated from February to March 2003 reflect that the Veteran underwent procedures of arch arteriogram and right upper extremity arteriogram and thrombolysis on February 22, 2003. The treatment report indicated that an informed consent was obtained from the Veteran. On February 23, 2003, after 29 hours after the initial procedure, a follow-up procedure was performed for angiogram for existing catheter, mechanical thrombectomy, and catheter exchange. The impression was successful thrombectomy of ulnar artery with loss of antegrade flow in the radial artery; outflow to the hand remained largely occluded; increased Urokinase doses. About 10 hours later, the Veteran was seen again for ischemic right hand and another right arm angiogram was conducted through existing catheter. The impression was irreversible ischemia despite restoration of patency of the forearm vessels. The thrombolytic infusion was discontinued. On February 24, 2003, computerized tomography (CT) scan of the brain revealed evidence of the left frontal mass causing mild subfalcine herniation and some midline shift of the lateral ventricles. It was noted that the findings raised a concern of embolic infarctions. Following a chest imaging, the impression was mild congestive failure. The Veteran was transferred back to the Wilmington VAMC in March 2012 for rehabilitation status post amputation of the right hand and a postoperative CVA. Subsequently, he underwent a right arm stump revision at the Philadelphia VAMC. In March 2004, the Veteran underwent a VA hemic disorder examination. The VA examiner stated that the claims file was not available for review. The Veteran reported that he underwent six months of physical therapy but his left hand closed up again about two months previously. On physical examination, there was no swelling of the left hand or the bilateral feet, and the right stump was intact without edema. Residuals of bone or other vascular infarction were noted to be loss of use of the left arm, decreased use of the left leg. The examiner noted that the Veteran had no use of the left arm; the left arm and hand were contracted and that he was unable to open his hand. He could use the right stump to move the left arm and was able to walk with a stilted gait. The examiner further noted that there was no active disease but progressive loss of function due to disuse or lack of active exercises. The Veteran also underwent a VA hand examination in March 2004 for evaluation of residuals of a CVA and right hand amputation. The examiner noted that the Veteran sustain an injury to the right hand on February 20, 2003 and was seen in the Wilmington VAMC emergency room the next day, at which time he was found to have signs of severe vascular impairment involving the right hand. He was transferred to the Philadelphia VAMC on an emergency basis and eventually underwent an amputation of his right upper extremity to the mid forearm due to irreversible vascular damage. While undergoing the surgery on his right upper extremity, he sustained a stroke, which affected his left upper extremity. The Veteran now had no use of the left upper extremity and had some pain in the right upper extremity amputation stump. The impressions were amputation through the right mid forearm due to vascular occlusion, and left hemiplegia resulting from complication of surgery on the right upper extremity with functionless left hand. In August 2004, the RO provided the Chief of Staff with the Veteran's VA and private medical records, as well as his statements, and requested that an investigation be conducted to determine whether the Veteran's right hand amputation and CVA resulted from carelessness, accident, negligence, lack of proper skill, error in judgment or similar instances of fault on the part of the VA without informed consent. In a September 2004 statement, L.B.S., M.D. found that the Veteran was initially seen at the Wilmington VAMC on February 21, 2003 for a trauma to the right hand that occurred 24 hours prior to admission and that he received expeditious and appropriate evaluation and treatment. He opined that the resulting right hand amputation was unanticipated and unavoidable given the findings on angiographic studies, i.e., occlusion of the vessels to the hand. Dr. S. also opined that the subsequent stroke was both unanticipated and unavoidable as all studies indicated that it was embolic in nature. In support of this opinion, Dr. S. stated, the pathologic report showed crystalline material in the vessels of the hand consistent with talc from intravenous drug use and stroke secondary to intravenous drug is commonly seen. Dr. S. further stated that the Veteran had significant disability from the injuries that had occurred, which were due to natural progression of the initial injury and did not arise as a result of treatment. Based on the foregoing, Dr. S. concluded that the Veteran's right hand amputation and stroke did not result from carelessness, accident, negligence, lack of proper skill, error in judgment or similar instances of fault on the part of the VA without informed consent; and that the cause of the additional disability was not a foreseeable event based on what a reasonable health care provider would have foreseen. Additionally, the Chief of Staff, M.K., M.D. noted the following the timeline: 02/21/03 12:20 the [Veteran] presented to the Wilmington, DE, VAMC, Emergency Department 02/21/03 15:45 the [Veteran] transferred directly from Wilmington VA, Emergency Department to Philadelphia, VAMC 02/21/03 23:06 Philadelphia, VA Attending Surgeon Note indicates [the Veteran] is being transferred to ASAP [(as soon as possible)] to Hospital of the University of Pennsylvania (HUP) 02/21/03 at HUP right hand amputated, later autopsy results revealed findings consistent with side effects of Intra-Vascular Drug Use (IVDU) 02/21/03 at HUP acute right MCA infarction, left sided stroke (CVA), a known complication of IVDU 02/28/03 transferred back to Philadelphia, VA 03/12/03 transferred back to Wilmington, VA In a May 2010 statement, E.G., M.D. noted that the Veteran's medical records were reviewed in detail. Dr. G. noted that following the Veteran's emergency room visit on February 21, 2003 evaluation of the Veteran's severe ischemic right arm was done immediately and he was transferred to vascular surgery in Philadelphia. After the Veteran was evaluated by vascular surgery, he was transferred within a short time period to the HUP for a hand surgery as the Philadelphia VAMC did not have microvascular techniques. However, the Veteran's right arm was not salvageable as gangrene had set in and he underwent amputation of the arm to save his life. Based on the foregoing, Dr. G. concluded that the Veteran's delay in seeking medical care most likely caused more complications and resulted in having to undergo amputation and that there was no evidence of delay (except for the Veteran's delay in seeking medical care), carelessness, neglect/lack of proper skill or error in judgment. After reviewing the medical opinions of record, the Board finds them inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that if VA provides a Veteran with an examination in a service connection claim, the examination must be adequate). The September 2004 VA medical opinion stated that the Veteran's right upper extremity amputation and CVA were due to natural progression of the initial injury and did not arise as a result of treatment. If the Veteran's additional disability caused by right upper extremity amputation and CVA were due to natural progression of the initial slip and fall injury, then they should have been foreseeable. However, the examiner later made a conflicting statement that the cause of the additional disability was not a foreseeable event based on what a reasonable health care provider would have foreseen. Due to the conflicting statements, the Board finds that this opinion is not adequate. The May 2010 VA medical opinion is also not adequate because it failed to address whether any additional disability found was due to an event not reasonably foreseeable. When the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Littke v. Derwinski, 1 Vet. App. 90, 93 (1990) (noting that remand may be required if record before the Board contains insufficient medical information for evaluation purposes); Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Therefore, the case is remanded for another medical opinion. Accordingly, the case is remanded for the following action: 1. The Veteran must be provided with a medical opinion to determine whether any additional disability caused by right upper extremity amputation and CVA is related to any deficiency in VA medical treatment. The claims file and all records on Virtual VA must be made available to an appropriate examiner, and the examiner must specify in the report that the claims file and Virtual VA records have been reviewed. Thereafter, the examiner must state whether the VA treatment rendered in February 2003 following his initial injury to the right arm caused any additional disability of any kind, to specifically include residuals of a right upper extremity amputation and a stroke. Thereafter, the examiner must provide an opinion as to whether any additional disability found was (a) 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, or (b) was due to an event not reasonably foreseeable. In addressing these questions, the examiner must state whether VA failed to exercise the degree of care that would be expected of a reasonable health care provider in the course of the treatment. In determining whether an event was not reasonably foreseeable, the examiner must discuss whether or not any additional disability found is considered to be an ordinary risk of receiving treatment provided to the Veteran in February 2003. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. If an additional examination is necessary to provide the requested opinions, one must be scheduled. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 2. The RO must then readjudicate the claims and, thereafter, if any claim on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Appellant until she receives further notice; however, she has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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) (2012).