Citation Nr: 1321085 Decision Date: 07/01/13 Archive Date: 07/12/13 DOCKET NO. 12-05 947 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for nerve damage and flu-like symptoms due to bilateral fifth toe arthroplasties of the proximal interphalangeal joints performed at a VA facility in January 2009. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from July 1972 until May 1974. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from March 2010 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A preliminary review of the record reflects that further development is necessary. Specifically, the Board finds a VA medical opinion is necessary. The Veteran has contended that VA was negligent in the performance of his January 2009 arthroplasties of the bilateral 5th toes and seeks entitlement to compensation under 38 U.S.C.A. § 1151. Specifically, he has testified that he has had numbness and cold of the lower extremities and flu-like symptoms since his surgery and he believed the anesthesiologist caused nerve damage. He testified that he had several epidural injections prior to the January 2009 procedure and that the anesthesiologist indicated the epidural was placed in the wrong area. Under 38 U.S.C.A. § 1151, compensation may be paid for a qualifying additional disability or qualifying death from VA treatment or vocational rehabilitation as if the additional disability or death were service connected. 38 U.S.C.A. § 1151. A disability is a qualifying additional disability if the additional disability was not the result of the Veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary of VA, and the proximate cause of the disability or death was 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 an event not reasonably foreseeable. Id.; see also Viegas v. Shinseki, 705 F.3d. 1374, 1377-78 (Fed. Cir. Jan. 2013) ("Section 1151 thus contains two causation elements-a Veteran's disability must not only be "caused by" the hospital care or medical treatment he received from the VA, but also must be "proximately caused" by the VA's "fault" or an unforeseen "event"). In determining whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after such care or treatment. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability. Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment 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(c)(2). An additional disability or death caused by the Veteran's failure to follow medical instructions will not be deemed to be caused by hospital care, medical or surgical treatment or examination. 38 C.F.R. § 3.361(c)(3). The record reflects the Veteran had a history of back pain and associated complaints of pain traveling down the lower extremities prior to the January 2009 procedure. For example, private records as early as 1993 report low back pain and complaints of numbness that radiated down the left leg. A February 1994 electromyography (EMG) report concluded with an assessment of abnormal EMG with evidence for chronic sciatic neuropathy versus S1 radiculopathy bilaterally. The Veteran underwent the bilateral arthroplasties on January 9, 2009. The operative report explained the indication for surgery was painful calluses on the plantar medial aspect of the toes with an adductor varus rotation and the Veteran desired elective surgery, even to the point of partial amputation of the toes, due to the pain. The operative report noted the diagnosis was adductor varus fifth toes and indicated the anesthetic was spinal with local anesthesia of 10ML of 0.5% Marcaine, plain. The operative report described the Veteran's condition as good and indicated he tolerated the spinal and local anesthetic well. Vital signs were stable and he was returned to recovery and would be discharged to go home. The post-operative anesthesiology note indicated the Veteran was awake and alert and had no complaints. Post-operative follow-up on January 22, 2009, noted the incision was intact with slight dehiscence, slight erythema, edema and possible early infection. On January 29, 2009, the Veteran was treated at a VA facility for continued tingling pain in the 5th right toe. At that time, he reported a history of cold feet for more than 15 years and the diagnosis was status post operative neuropathy. He continued to complain of cold and numbness of the feet and VA outpatient treatment records in March and April 2009 noted a recurring pinch callus and Reynaud's. An April 2009 EMG concluded with an impression of bilateral lower extremity neuropathy involving sensory and motor fibers. In May 2009, a VA rheumatologist noted complaints of foot pain progressing to chills and shakes at least twice a week. The rheumatologist noted no apparent evidence of Reynaud's, but found cyanosis of the bilateral toes and diagnosed peripheral neuropathy. A May 2009 addendum by the rheumatologist explained there was no stigmata of inflammatory arthropathy, the picture did not match Reynaud's phenomena and other crest symptoms were absent. The cold toes were suspected to be a reflection of peripheral vascular disease. VA records in November 2009 noted complaints of pain in the feet going up the back of the legs to the knees. The Veteran indicated this problem started with the surgery of the toes. An April 2011 letter of J.C.D., M.D. reported that there may be a component of reflex sympathetic dystrophy and the majority of the symptoms were not that of pseudoclaudication, though there may be a component of that as well. A June 2011 record of J.K, M.D., noted complaint of feeling ice cold from the waist down both legs since the surgery in 2009. The Veteran also described episodes where his legs, particularly the feet, turn purple and reported a numb, tingling sensation that started in the feet and extended up the legs. The assessment was bilateral lower extremity partesthesias, pain, changes in color and temperature. A June 2011 letter of J.C.D., M.D. explained the Veteran was neurologically stable with his feet still turning purple periodically. The magnetic resonance imaging study showed marked changes at L4-5 where there was a component of stenosis, but the Veteran did not have pain radiating down the leg. Rather, the pain emanated from the feet and may be a component of reflex sympathetic dystrophy. A September 2011 private medical record of J.K., M.D. concluded that some of the leg weakness may be due to the radiculopathy but noted the distribution of pain was not consistent with this and explained the neuropathy complicated the picture. It is well-settled that in its decisions, the Board may not rely upon its own unsubstantiated medical opinion. Allday v. Brown, 7 Vet. App. 517 (1995); Colvin v. Derwinski, 1 Vet. App. 171 (1991). In light of the above evidence reflecting complaints of some numbness of the lower extremities prior to the January 2009 procedure and evidence suggesting several differing diagnoses for the Veteran's current complaints, including peripheral neuropathy, radiculopathy, peripheral vascular disease, Reynaud's phenomenon, pseudoclaudication, and reflex sympathetic dystrophy, the Board is without medical expertise to determine whether there is any additional post-surgery disability. Thus, a medical opinion to clarify the Veteran's current disability picture and determine whether any additional disability was due to carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault or an event not reasonably foreseeable is necessary. Finally, a review of the record reflects there are outstanding relevant treatment records. For example, a January 2012 VA outpatient treatment record notes the Veteran was seen by his private neurologist in December 2011; however, that record is not associated with the claims file. Although some of Dr. D.'s records were received as part of the Veteran's Social Security Administration records, complete records from this private physician have not been requested or received. Additionally, VA outpatient treatment records refer to scanned documents which are not accessible by the Board. For example, the record reflects that the complete informed consent for the January 2009 arthroplasty was available on VISTA. Similarly, April 2011 and October 2011 VA records refer to private record from Fort Wayne Neurology and Parkview Hospital that were scanned into VISTA. However, these VISTA records have not been associated with the claims file in a way such that the Board may view them. Therefore, a remand is also required to obtain and associate with the claims file these VISTA records. As the Veteran has been treated at VA facilities, on remand, updated treatment records, including any records scanned into VISTA, should be obtained and associated with the record. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159 (2012). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran in order to have him identify all sources of treatment received for his claimed nerve damage and flu-like symptoms and to provide any release necessary for VA to secure records of such treatment or evaluation. The RO/AMC then should undertake to obtain copies of the complete records of all such treatment from the identified sources. * The RO/AMC should specifically request records from J.C.D., M.D. and associate these records with the claims file. * Updated VA treatment records since January 2012 should also be associated with the claims file. * The RO/AMC should ensure that all records scanned to VISTA, including the complete informed consent for the January 9, 2009, arthroplasty, records from Fort Wayne Neurology and Parkview Hospital, are associated with the claims file. If any requested records are not available, that fact must clearly be documented in the claims file and proper notification under 38 C.F.R. § 3.159(e) should be provided to the Veteran. 2. After any records requested above have been associated with the claims file, the RO/AMC should send the claims file to an appropriate VA examiner. If the examiner deems a physical examination necessary, the requested examination should be scheduled at the Fort Wayne VA Medical Center. After review of the file, the examiner should provide an opinion as to the following: a) is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran has additional disability of the lower extremities after the January 2009 arthroplasty? The examiner should specifically discuss the complaints of pain starting in the feet and traveling up to the knee and the records noting post-operative diagnoses of peripheral neuropathy, radiculopathy, peripheral vascular disease, Reynaud's phenomenon, pseudoclaudication, and reflex sympathetic dystrophy. b) is it at least as likely as not (i.e., 50 percent or greater probability) that the Veteran has additional disability related to the complaints of perpetual flu-like symptoms after the January 2009 arthroplasty? c) for any additional disability found, the examiner should opine as to whether any additional disability is a result of carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination in association with the January 2009 VA arthroplasty; or due to an event not reasonably foreseeable. The examiner should address the effect of the Veteran's past history of at least 12 prior epidural injections and the Veteran's assertion that the anesthesiologist placed the epidural in the wrong location. A clear rationale for all opinions is required, to include a discussion of the facts and medical principles involved. 3. After the development requested has been completed, the RO/AMC should review the examination reports to ensure that it is in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 4. The RO/AMC should take any additional development action it deems proper. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of the additional evidence and readjudicated. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ STEPHANIE L. CAUCUTT Acting 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).