Citation Nr: 1310171 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 08-02 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to compensation benefits under the provisions of 38 U.S.C. § 1151 for sacral decubitis ulcer. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1960 to November 1961. He died in December 2010. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied compensation under 38 U.S.C. § 1151 for sacral decubitis ulcer. In September 2007, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in January 2008. In January 2011, the Board dismissed the Veteran's claim due to his death during the pendency of the appeal. The appellant, as the surviving spouse of the Veteran, subsequently moved for substitution to complete the processing of the Veteran's claim. The RO granted the appellant's motion in January 2012. FINDING OF FACT The Veteran sustained the additional disability of sacral decubitis ulcer as a direct result of negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment. CONCLUSION OF LAW The criteria for entitlement to VA compensation under 38 U.S.C. § 1151 for sacral decubitis ulcer have been met. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) As to the claim of entitlement to compensation under 38 U.S.C. § 1151 for sacral decubitis ulcer, this claim has been granted, as discussed below. As such, the Board finds that any error related to the VCAA is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The appellant claims that the Veteran's sacral decubitis ulcer was the result of his VA treatment. Specifically, she claims that the VA treatment providers failed to adequately prevent bedsores during the Veteran's hospitalization, including failing to turn him often enough and allowing him to sit in feces and urine for extended periods. As such, she believes compensation is warranted under 38 U.S.C. § 1151. Where a veteran has an additional disability resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. See 38 U.S.C.A. § 1151 (West 2002). For claims filed on or after October 1, 1997, as in this case where the claim was received by VA in July 2006, the claimant must show that VA examination or treatment resulted in additional disability or death and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was an event which was not reasonably foreseeable. See 38 U.S.C.A. § 1151 (West 2002); see also VAOPGCPREC 40-97, 63 Fed. Re. 31263 (1998). By changes effectuated as of September 2, 2004, 38 C.F.R. § 3.358 was rendered applicable only to claims received by VA prior to October 1, 1997. See 69 Fed. Reg. 46433 (2004). The provisions of 38 C.F.R. § 3.361 govern claims, such as this one, received on and after October 1, 1997. See id. Claims based on additional disability due to hospital care, medical or surgical treatment, or examination must meet the causation requirements of 38 C.F.R. § 3.361(c), (d) (2012). The proximate cause of disability is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. See 38 C.F.R. § 3.361(d) (2012). 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, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability (as explained in § 3.361(c)), 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. See 38 C.F.R. § 3.361(d)(1) (2012). The Veteran was admitted to the Nashville VA Medical Center (VAMC) in February 2003 to undergo a posterior cervical decompressive laminectomy of C2-7. The Veteran and his daughter and wife indicate that he did not have any bedsores upon his February 2003 admission. The February 2003 admission report also supports these contentions. However, when he was transferred from the Nashville VAMC, he had a bedsore that was 10cm by 14cm in size and either stage III or IV on his sacrum. During his post-operative hospitalization, the Veteran was bedridden and dependent on VA medical staff for all movement, including frequent turning to prevent bedsores. The Board's review of the VA treatment records include notations reflecting that he was turned every two hours for nine days following his surgery. However, the records immediately following this nine day period are negative for any notations relating to turning. The first notation regarding his sacral decubitis ulcer is a February 25, 2003 VA treatment record noting that his back and buttocks were red and inflamed and the sacral area was breaking down. This treatment record was dating three days after the last notation of turning every two hours. The bedsore was considered stage II at that point. Following this notation, the Veteran was moved to the intensive care unit (ICU) following an incident of respiratory arrest. He was placed in fulltime wrist restraints to prevent him from removing his ventilator and under the total care of hospital staff. Specifically, he was unable to turn himself or utilize the restroom. Although a February 28, 2003 restraint consultation note indicates that the Veteran should be turned every two hours, the ICU records are negative for any reflections of care for the existing bedsore or regular turning of the Veteran. Upon his transfer from the ICU back to a regular ward approximately a week later in March 2003, the Veteran's sacral bedsore was measured as 10 cm by 14 cm. He continued his hospital stay in the regular ward under April 15, 2003 when he was transferred to a VA rehabilitation facility. During this period, some records include notations of a stage III sacral pressure ulcer and reference treatment for it, including turning the Veteran and wound care. However, other records from this period are negative for any reference to the pressure ulcer or treatment thereof. Upon admission to the VA rehabilitation facility, the Veteran was found to have three pressure ulcers, the one on his sacrum and two additional ulcers on his right buttocks. Subsequent VA treatment records indicate that the Veteran continued to be treated for his sacral decubitis ulcer for years after his February 2003 surgery. In addition to the VA treatment records, the chronology of the Veteran's sacral decubitis ulcer is presented in statements from his daughter. Specifically, emails from his daughter dated in April 2003, as well as recent recollections, claim that she visited her father in April 2003 for three hours, during which time he was not turned once. Additionally, she claims that, although she and the Veteran's wife asked VA medical staff to change him after he had a bowel movement, he remained lying in his own feces for over three hours before being changed. Further, the Veteran's wife submitted a statement indicating that she visited the Veteran frequently and he was also almost always lying on his back and often lying in moisture (specifically urine or feces) for long periods of time. The Board notes that the Veteran's wife and daughter are competent to report such observations and that there is no evidence to contradict their statements. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Layno v. Brown, 6 Vet. App. 465, 469 (1994). As the medical and lay evidence clearly establishes that the Veteran suffered additional disability, in the form of bedsores, during his VA hospitalization. Therefore, the Board must turn to the question of whether this additional disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part. In October 2012, the Board sought an Independent Medical Expert (IME) opinion to determine whether the Veteran's bedsores were due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part. The December 2012 IME opinion concluded that it was at least as likely as not that the Veteran's bedsores were due to VA carelessness and inaction. Specifically, the IME reviewed the Veteran's VA treatment records and noted his preexisting diagnoses of obesity, diabetes, venous stasis, low albumin, and bad nutritional status. Due to these preexisting conditions, the IME concluded that the Veteran was at increased risk of developing pressure ulcers. As such, a reasonable hospital caregiver would try his/her best to prevent skin breakdown by turning the patient frequently, watching for early signs of breakdown, maintaining better nutrition, and keeping the skin clean and dry. He also indicated that a reasonable healthcare provider would fully document all such preventive care and any wound care treatment if a pressure ulcer did develop. In this case, he noted that the preventive care was not well documented and that it should be assumed that, where turning was not noted, it did not happen. In light of the lack of documented turning of the Veteran and the rapid development of bedsores during the Veteran's hospitalization, the IME concluded that the Nashville VAMC did not adequately prevent or treat the Veteran's pressure ulcers. As such, his sacral decubitis ulcer was considered to be due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part. Therefore, resolving all doubt in his favor and affording the appellant the full benefit of the doubt, the Board finds that the medical evidence supports the appellant's claim and compensation under 38 U.S.C. § 1151 for a sacral decubitis ulcer is granted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a sacral decubitis ulcer is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs