Citation Nr: 1312971 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 05-23 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for burns behind the left knee with nerve damage and left foot drop and unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1958 to September 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2006, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issue on appeal was adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position was suggested. See 38 C.F.R. § 3.103(c) (2012). The case was remanded for additional development in May 2007, March 2010, and September 2011. FINDING OF FACT The Veteran's additional disability of burns behind the left knee with nerve damage, left foot drop, and unemployability is not shown to have been proximately caused by VA surgical treatment nor is his September 19, 2002, surgery shown to have been performed in a VA facility or by a VA employee. CONCLUSION OF LAW The criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for burns behind the left knee with nerve damage and left foot drop and unemployability have not been met. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in March 2003. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes VA treatment and examination reports, VA Medical Center reports dated April 23, 2010, and April 5, 2012, private treatment records, an October 2011 statement from the Office of Legal Counsel at the University of Kentucky, and the Veteran's statements and testimony in support of his claim. The development requested on remand in May 2007, March 2010, and September 2011 has been substantially completed. Although the Veteran's service representative has asserted that quality assurance records associated with the September 19, 2002, surgery should be obtained, the Board finds any such records maintained by the University of Kentucky are not within VA control and that the available evidence adequately addresses a causal relationship with the Veteran's additional disability. There is no evidence of any additional existing pertinent records. Further attempts to obtain additional evidence would be futile. The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although 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 appellant 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 appellant 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 claimant). The Board also makes no decision or opinion as to any legal claim other that the issue of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151. Effective October 1, 1997, 38 U.S.C.A. § 1151 was amended by the United States Congress. See § 422(a) of PL 104-204. The purpose of the amendment was, in effect, to overrule the United States Supreme Court decision in Brown v. Gardner, 115 S. Ct. 552 (1994), which held that no showing of negligence was necessary for recovery under § 1151. In pertinent part, Section 1151, as amended, reads as follows: Compensation under this Chapter and dependency and indemnity compensation under Chapter 13 of this Title shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death 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, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, 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. From the plain language of the statute, it is clear that to establish entitlement to Section 1151 benefits, these factors must be shown: (1) Disability/additional disability; (2) that VA hospitalization, treatment, surgery, examination, or training was the cause of such disability; and (3) that there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an event not reasonably foreseeable. The regulation 38 C.F.R. § 3.361 (2012) implements 38 U.S.C.A. § 1151. 38 C.F.R. § 3.361(e)(1) defines a VA employee as an individual (i) Who is appointed by VA in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. 2105;(ii) Who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of law; and (iii) Whose day-to-day activities are subject to supervision by the Secretary of Veterans Affairs. Under 38 C.F.R. § 3.361(e)(2) a VA facility is defined as a facility over which the Secretary of Veterans Affairs has direct jurisdiction. Activities that are not hospital care, medical or surgical treatment, or examination furnished by a VA employee or in a VA facility within the meaning of 38 U.S.C. § 1151(a) include (1) Hospital care or medical services furnished under a contract made under 38 U.S.C. § 1703 (VA may contract with a non-VA facility to furnish medical care for treatment); (2) Nursing home care furnished under 38 U.S.C. § 1720; (3) Hospital care or medical services, including examination, provided under 38 U.S.C. § 8153 (VA may enter an agreement for the mutual use, or exchange of use, of health-care resources) in a facility over which the Secretary does not have direct jurisdiction. See 38 C.F.R. § 3.361(f). In this case, a review of the VA record shows that service connection has been established for the Veteran's congestive heart disease. A 100 percent rating was assigned effective from July 29, 2001, in an August 2003 rating decision. VA treatment records dated September 4, 2002, show the Veteran underwent heart catheterization which revealed three vessel heart disease. A September 13, 2002, VA Open Heart Surgery Insurance Verification Note found the Veteran had no insurance and, in essence, had no compensable service-connected disabilities. It was noted the Veteran was provided information for VA fee basis payment and notified that VA would pay only for heart surgery bills. His follow-up surgery care was to be conducted at a VA Medical Center and not at the University of Kentucky Medical Center. Hospital records from the University of Kentucky, Chandler Medical Center, show the Veteran underwent coronary bypass grafting on September 19, 2002. The operation report indicated C.R., M.D., was the attending surgeon and attending physician. Postoperative notes show blistering was observed behind the left knee. A discharge summary noted that follow-up care was to be conducted by Dr. C.R. at a VA surgery clinic. Billing records show VA payment in October 2002 for services provided on September 19, 2002. Subsequent VA treatment records dated in April 2003 noted the Veteran had a left leg disorder and that no future improvement was expected. A September 2009 VA examination revealed a severe dysfunction of the left sciatic nerve that was consistent with an injury to the left popliteal fossa and underlying nerves and consistent with the timing of his September 2002 surgical procedure. It was noted that left foot drop and neuropathy were not ordinary risks associated with coronary artery bypass grafting. An October 2010 VA medical opinion found the Veteran's burn and nerve damage were at least as likely as not due to a chemical burn (from spilled liquid), pressure necrosis, or a faulty grounding pad, any of which could have been due to a lack of proper care or checks during the operation. In statements and testimony in support of his claim the Veteran asserted that VA was responsible for his injury during the surgery on September 19, 2002. He further asserted that VA had paid for his surgery at the University of Kentucky Medical Center and was responsible for his receiving appropriate care, that VA medical providers sent him for the treatment at that facility, and that his surgical care providers on that date were VA employees. In correspondence dated April 23, 2010, J.A.P., M.D., Chief of Staff at the Lexington, Kentucky, VA Medical Center, stated that at the time of the Veteran's September 2002 surgery VA had a contract with the University of Kentucky specifically for CT (cardiothoracic) surgery which was not a sharing agreement. It was further noted that, although Dr. C.R. did have a part-time appointment during that time, any surgery or care he or others may have provided at the University of Kentucky was not under the jurisdiction or legal liability of VA. Correspondence dated October 13, 2011, from the Office of Legal Counsel at the University of Kentucky reported that they had various contracts with VA over the years for cardiothoracic surgery services, but that from February 7, 2002, to April 30, 2003, there was no contract in place for such services. In an April 2012 statement Dr. J.A.P., in essence, clarified that there was no contract with the University of Kentucky at the time of the Veteran's surgery and that according to VA records he was sent to the University of Kentucky on a fee basis without contract. Based upon the evidence of record, the Board finds the Veteran's additional disability of burns behind the left knee with nerve damage, left foot drop, and unemployability is not shown to have been proximately caused by VA surgical treatment nor is his September 19, 2002, surgery shown to have been performed in a VA facility or by a VA employee. The evidence received from the University of Kentucky and from the Lexington VA Medical Center clearly shows the Veteran's September 19, 2002, surgery was performed at a non-VA facility under a fee basis agreement by employees who at that time were not subject to supervision by the Secretary of Veterans Affairs. In fact, VA regulations specifically state that hospital care or medical services furnished under a contract made under 38 U.S.C. § 1703 or 38 U.S.C. § 8153 are not activities considered to be furnished by a VA employee or in a VA facility within the meaning of 38 U.S.C. 1151(a). See 38 C.F.R. § 3.361(f). VA treatment records in this case also show the Veteran was notified of the conditions and limitations of VA fee basis payment for his care at the University of Kentucky in September 2002. Although the Veteran is shown to have sustained a severe additional disability as a result of his surgery on September 19, 2002, the Board finds no basis under applicable law for VA compensation. Payments from the Federal Treasury must be authorized by statute and government employees may not make obligations which are beyond the scope authorized by statute. See Smith v. Derwinski, 2 Vet. App. 378, 379 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 424, 110 S. Ct. 2465, 2471, 110 L. Ed. 2d 387 (1990); 31 U.S.C. § 1341(a)). When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the claim. The appeal must be denied. ORDER Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for burns behind the left knee with nerve damage and left foot drop and unemployability is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs