Citation Nr: 1301032 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 12-16 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for qualifying additional disability due to VA hospital care and surgical and medical treatment for his feet, beginning in 1998. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from September 1959 to September 1961. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. In August 2010, the Veteran testified at a personal hearing before the Board. A transcript of that hearing is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND The Veteran asserts that he has additional disability of his feet due to fault on the part of VA in providing surgical and medical treatment beginning in 1998. Under 38 U.S.C.A. § 1151, compensation shall be awarded for qualifying additional disability of a veteran in the same manner as if such disability were service connected. A qualifying additional disability is one, not the result of the veteran's misconduct, that was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by VA, where the proximate cause of the disability was due to fault on the part of VA in furnishing such care or due to an event not reasonably foreseeable. 38 U.S.C.A. § 1151(a). During the August 2012 hearing before the Board, the Veteran explained that he was alleging that he has additional disability due to fault on the part of VA in performing surgical procedures on his right foot as well as related medical and hospital care. He reported that he initially injured his 5th right toe, sought treatment at a VA Medical Center (VAMC) and VA amputated that toe. He testified that after that operation physicians debrided the toe in his hospital room and he was discharged. He testified that in a later primary care appointment he was found to have a methicillin-resistant staphylococcus aureus (MSRA) infection of the right foot and VA amputated his right 4th toe. He testified that the physician mistakenly cut the bone and muscle of the right 3rd toe. His testimony is somewhat unclear at this point but it appears to be that a VA nurse informed him of the mistaken cutting of his right 3rd toe. He testified that he has had repeated MSRA infections and numerous operations of his right foot and left foot. He testified that he believed his right foot complications caused left foot problems. He testified that VA later amputated the second toe of his left foot He also testified that two VA nurses informed him that a lot of mistakes had been made in his case and that one of the nurses told him that the difficulties with his feet should never have occurred. He identified the nurses during the hearing. When asked to clarify the scope of his appeal, he testified that all of the surgeries, either six or seven depending on whether the amputation of the right 5th toe followed by the bedside debridement of that site are counted as one or two surgeries, were not done properly. The record includes evidence from which the Board can independently discern at least some of the relevant history in this case. A February 9, 1998 x-ray report documents that the Veteran had a fracture of the right fifth toe. A February 27, 1998 x-ray report documents that his right 5th toe had been amputated and that infection and osteomyelitis could not be ruled out. A June 1999 x-ray report documents acute osteomyelitis of the right 5th toe. A December 1999 x-ray report documents that there had been amputations of the right 4th and 5th toes and there were findings of the 3rd metatarsophalangeal joint that raised the possibility of osteomyelitis. February 2000 treatment notes include an impression of possible osteomyelitis in the right 1st and 3rd metatarsal head. By December 2000 he had cellulitis of the right foot that was resolving. In February 2001, he was admitted for acute infection of the right lower extremity. He was treated with extensive debridement and by August 2001 was described as doing well. His right 3rd toe was amputated in September 2001 because of intractable pain. March 2002 treatment notes describe the history of his right foot condition as having several surgeries of his right foot including amputation of the 3rd, 4th, and 5th toes and metatarsal heads, drainage of abscess to the plantar surface of the foot and other surgeries. Those notes document that he recently had abscess over the right medial malleolus, the abscess was drained, and he was found to have an MRSA infection growing in the abscess. In September 2002 he underwent resection of the left 2nd metatarsal head and irrigation and drainage of the left 2nd plantar tendon sheath. By October 2002 he had an MSRA infection of the left foot. July 2005 notes document that the Veteran injured his left foot one month earlier, developed cellulitis, was admitted for antibiotics, and the plan was to amputate the left 2nd toe. January 2007 x-ray findings noted that there had been transmetatarsal amputation of the right 3rd, 4th, and 5th toes. VA amputated his left 2nd toe in July 2005. Later that month he was found to have an MSRA infection of that amputation site. Notes after 2005 document that he continued to have problems with his feet. The record appears incomplete. Rather than the surgical reports, the evidence regarding his amputations consists of after the fact accounts, for example from x-ray studies. There are no signed informed consent forms relevant to the surgeries of record. As it appears that such relevant evidence should exist but is absent from the claims file, a remand is necessary so that all available relevant evidence can be associated with the claims file. Here, the question is whether VA was at fault in providing the treatment of the Veteran's feet or if the events that resulted in the amputations and infections, or the amputations and infections themselves, were not reasonably foreseeable. The evidence of record shows that he has disability of his feet that he did not have prior to VA treatment beginning in 1998. His report of what nurses told him must be considered in determining whether VA has a duty to assist him in this case by providing an examination and obtaining an expert opinion. Taking the facts of this case under consideration, the Board concludes that VA has a duty to provide the Veteran with an examination and obtain an expert medical opinion in this case. See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). For these reasons, a remand is necessary in this case so that VA can fulfill its duty to assist the Veteran in obtaining evidence to substantiate his claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain all relevant VA treatment records, including operation reports and informed consents, with regard to treatment of the Veteran's feet from February 1998 to the present. Particular attention must be given to obtaining all reports of procedures, including of each and every amputation of the toes of each foot during that period and of debridements of his feet during that period. Particular attention must also be given to obtaining informed consent forms signed by the Veteran for all such procedures. If the records are not obtained, the RO/AMC must document all efforts to obtain the records and obtain negative responses from the VA treatment facility or facilities. 2. After all obtainable evidence described above is associated with the claims file, ensure that the Veteran is scheduled for an examination by a suitably qualified medical professional. The claims file must be provided to the examiner, the examiner must review the claims file in conjunction with the examination, and the examiner must annotate his or her report as to whether the claims file was reviewed. The examiner is asked to address the following: (a) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that 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 of the Veteran's feet from February 1998 to the present caused him to suffer amputation of toes and infections of his feet. A complete rationale must be provided for any conclusion reached. (b) Provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the amputations of his toes and infections of his feet were due to an event not reasonably foreseeable or were themselves events not reasonably foreseeable. 3. Then readjudicate the Veteran's claim of entitlement to compensation for qualifying additional disability under the provisions of 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. If the benefit is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter 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 be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BARBARA B. COPELAND 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).