Citation Nr: 1300974 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-32 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a left leg disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from October 1958 to May 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT A left leg disorder is not proximately due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in the provision of medical care, and is not the result of an event that was not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for a left leg disorder have not been met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). For the reasons to be discussed, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claim, has notified him of the information and evidence necessary to substantiate the claim, and has fully disclosed VA's duties to assist him. In November 2007 and September 2008 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claim on appeal. This evidence specifically addressed the evidence required to establish entitlement to compensation pursuant to 38 U.S.C. § 1151. Additionally, because the Veteran's compensation claim is being denied herein, any failure to provide notice regarding the initial rating and effective date to be assigned is moot. Id. The Board notes that, in the present case, initial notice was issued prior to the January 2009 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records. He has also been afforded a VA medical opinion in January 2008. The Board notes that the VA medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal. The Board is not aware, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. The Veteran submitted new evidence to VA following the issuance of the statement of the case by the agency of original jurisdiction (AOJ), and no supplemental statement of the case has been subsequently issued by the AOJ. See 38 C.F.R. § 19.31. Upon further review, however, this evidence consists of a statement confirming the Veteran's current level of disability and need for assistance care, facts already established within the prior evidence of record. Thus, his appeal need not be remanded for RO consideration of this evidence. See 38 C.F.R. § 20.1304; see Vogan v. Shinseki, 24 Vet. App. 159, 167 (2010). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. The Veteran seeks compensation pursuant to 38 U.S.C.A. § 1151 for a left leg disorder allegedly resulting from medical care provided by VA. The law provides that compensation may be paid for a qualifying additional disability not the result of the Veteran's willful misconduct, caused by hospital care, medical or surgical treatment, or examination furnished the Veteran when the proximate cause of the disability was: (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 not recently foreseeable. 38 U.S.C.A. § 1151. The regulations provide that benefits under 38 U.S.C.A. § 1151(a) for claims received by VA on or after October 1, 1997, as in this case, for additional disability due to hospital care, medical or surgical treatment, examination, require actual causation not the result of 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. If additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran's additional disability. See 38 C.F.R. § 3.361(c)(1). In addition, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). It must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability, and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that (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 establish the proximate cause of an additional disability or death, it must be shown that there was 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. Whether the proximate cause of a Veteran's additional disability or death was an event not recently foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d). In the present case, the Veteran sustained an open fracture of his left femur in May 2003 due to a fall at his home. He was initially admitted to a private hospital, where initial debridements were performed, but was subsequently transferred to a VA medical center approximately one week later. At the VA medical center, the Veteran had an open reduction and internal fixation of his left femur performed. The internal fixation was accomplished using a 11mm by 750mm rod. He was noted to have had a left knee fusion 30 years ago as the result of injuries sustained in a motorcycle accident. His initial surgery and post-operative care were without significant complications. Six days later, he was transferred to another VA hospital for a program of intensive rehabilitation and physical therapy. He was gradually able to bear weight on his left leg with the use of a walker, and his recovery and rehabilitation were within normal limits. He was discharged from the VA hospital in September 2003 to be followed on an outpatient basis. Thereafter, the Veteran continued to display a non-union of the distal supracondylar femur fracture, and in May 2004, the distal interlocking screw was surgically removed to encourage union of the fracture. As the Veteran's non-union of the femur failed to fully heal at the fracture site, a bone graft was subsequently performed in February 2005. His old hardware in the left leg was also removed and replaced. The old rod was noted to be bent. The Veteran contends that VA's treatment of his left femoral fracture constituted carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical care, such that he had complications of his initial injury, requiring additional surgeries. He has specifically stated that the second installation of hardware in his left leg in February 2005 was the result of VA's erroneous use of the wrong sized rod in May 2003. A VA medical opinion was obtained in January 2008. A VA physician, W.M., M.D., reviewed the Veteran's medical history, to include the treatment received for his fracture of the left femur, and determined carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical care was not established. While the examiner noted that the Veteran's case was "extremely complicated", the care provided by VA was nevertheless "excellent", according to the examiner. While the Veteran did experience complications, these complications were outside the control of VA medical care providers, and were unrelated to his VA medical care. The causes of the Veteran's complications, according to the examiner, included the nature of the injury itself, an open fracture; his prior history of a left knee fusion following a motor vehicle accident approximately 30 years prior to his 2003 injury; and his obesity. The size of the rod initially placed in the Veteran's left leg to help stabilize the fracture was "satisfactory" and "according to protocol" in the examiner's opinion, and the Veteran's rehabilitation program and other follow-up care was also satisfactory. The examiner conceded that the healing of the Veteran's fracture remained incomplete, but this ongoing disability was unrelated to his medical care provided by VA. Additionally, the examiner did not state these complications were an unforeseeable result of his various complications. Overall, the examiner found the level of care the Veteran received from VA to be excellent. Also of record is a February 2008 handwritten statement from M.B., M.D., a VA physician who began treating the Veteran in October 2006. Dr. B. noted the Veteran's initial injury, his fracture of the left femur. Dr. B. also noted that the Veteran experienced continued non-union of the femur following his initial injury, and required additional surgeries, with the most recent in February 2007. Since that time, the Veteran had continued to experience left leg pain, for which he used a scooter and narcotic pain medication. The Veteran's left leg was also now shorter than his right leg, and he was currently disabled, in Dr. B.'s opinion. After considering the totality of the record, the Board finds the preponderance of the evidence to be against the award of compensation under 38 U.S.C.A. § 1151 for a left leg disorder, to include residuals of a left femoral fracture. The evidence does not show that the Veteran's VA medical care subsequent to his May 2003 fracture was characterized by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical care. Additionally, evidence has not been submitted establishing that any current left leg disorder is the result of an event not reasonably foreseeable. According to Dr. M.'s January 2008 opinion statement, the VA medical treatment, to include hospitalizations and rehabilitation, received by the Veteran were appropriate to his medical circumstances, and did not result in any increased or additional disability or death due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA care providers. The evidence suggests there was informed consent, as the Veteran was a willing recipient of VA medical treatment and rehabilitation services, and he does not contend otherwise. The Board further notes that the Veteran actually requested transfer from a private hospital, where he was initially taken at the time of his injury, to a VA medical center. Additionally, there is no competent evidence of the occurrence of an event not reasonably foreseeable or causation or aggravation of a disease or disability beyond its natural progress due to any VA treatment or hospitalization, resulting in any additional impairment claimed herein under the provisions of 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.361. As noted above, Dr. M.'s January 2008 opinion statement characterized the Veteran's VA medical care received from May 2003 to the present to be of excellent quality, overall. While the Veteran did experience complications related to his initial fracture, these were the result of the nature of his injury, his own physical condition, and his prior medical history, to include a previous fusion of his left knee following a motor vehicle accident. The Board also notes that the Veteran was not fully compliant with medical instructions; according to a May 2003 clinical notation, the Veteran was "resistant to cueing for safety and to maintain[ing] [weightbearing] precautions." The Veteran's behavior at the time "may be placing himself at risk for poor healing secondary to noncompliance with weightbearing guidelines", according to the VA clinician who observed him at that time. The Board also notes that the February 2008 statement from Dr. B. also does not suggest VA was careless, negligent, or otherwise at fault in failing to exercise proper skill or judgment, or a similar instance of fault on VA's part in furnishing medical care. Dr. B. merely verified that the Veteran experienced complications following his initial injury, and has ongoing left leg pain and a leg length discrepancy as a result. Dr. B. did not suggest any aspect of the Veteran's VA medical care was careless, negligent, or otherwise substandard. The remainder of the record is likewise silent for any competent evidence regarding any instance of fault on the part of VA in rendering medical care to the Veteran. The Veteran has also offered his own assertion regarding his left leg disorder. In part, he asserts that the rod was too weak or the wrong size. However, he has not presented a factual foundation for his opinion. As a layperson, the Veteran is not capable of making complex medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board concedes that the Veteran is competent to testify regarding such observable symptomatology as chronic pain of his left leg, and a leg length discrepancy. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Additionally, the Board concedes as a factual matter established by the evidence that the Veteran has ongoing and chronic residuals of his initial May 2003 fracture of the left femur. The etiology of the Veteran's current left leg disorder is, however, a complex medical question which requires specialized training for a determination as to etiology and causation, and it is therefore not susceptible of lay opinions on etiology, and the Veteran's statements therein cannot be accepted as competent evidence of the same. Even were the Board to grant the Veteran's contentions any probative weight, they would be of lesser weight as compared to the expert medical opinion obtained by VA in 2008. In conclusion, the preponderance of the evidence is against the award of compensation under 38 U.S.C.A. § 1151 for a left leg disorder, to include residuals of a left femoral fracture. As a preponderance of the evidence is against the award of compensation under 38 U.S.C.A. § 1151, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a left leg disorder, claimed as resulting from medical care provided by VA, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs