Citation Nr: 1324358 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 07-04 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012) for additional disability of the left lower extremity venous pathology from VA outpatient treatment between 2004 and 2005. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from January 1970 to December 1970. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a rating decision of the VA Regional Office (RO) in North Little Rock, Arkansas. The case comes to the Board from the St. Petersburg, Florida, RO. The case was remanded for further development by Board decisions in December 2010, April 2011, and March 2012. The Veteran was afforded a videoconference hearing in December 2011 before the undersigned Veterans Law Judge. The transcript is of record. The Board observes that following the most recent supplemental statement of the case in October 2012, additional evidence was received in support of the claim that includes pertinent VA outpatient records and a VHA medical expert opinion dated in April 2013. This evidence was not previously been considered in the adjudication of this case. However, the Veteran's representative waived consideration of this evidence by the agency of original jurisdiction in the Written Brief Presentation dated in July 2013. As such, the Board may consider this evidence in the first instance. See 38 C.F.R. § 20.1304(c) (2012). FINDING OF FACT There is competent medical evidence of record that the Veteran did not sustain additional left lower extremity venous pathology between 2004 and 2005 due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing care, or due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C.A. § 1151 for additional venous pathology of the left lower extremity as the result of VA outpatient treatment between 2004 and 2005 have not been met. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5107 (West 2002 &Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) 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 and 3.326(a) (2012). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met in this instance. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in July 2005 and November 2005 of the information and evidence needed to substantiate and complete the claim, to include notice of what evidence the claimant could provide in support of the claim, and the evidence VA would attempt to obtain on his behalf. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and affording VA examinations. These examinations are adequate to render a determination as to the issue on appeal. The Veteran also presented testimony on personal hearing in December 2011. The entire claims folder has been carefully reviewed. The Board finds that there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). As such, the claim is ready to be considered on the merits. Furthermore, during the December 2011 Board hearing, the undersigned explained the issue on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. Pertinent Law and Regulations The law provides that compensation may be paid for a qualifying additional disability or qualifying death, 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 or death 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 reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2002 & Supp. 2012). It must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death, 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.38 C.F.R. § 3.361(d)(1) (2012). Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable in each claim is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32 (2012). 38 C.F.R. § 3.361(d)(2) (2012). Factual Background VA outpatient clinic notes dating from February 2003 reflect that the Veteran had a problem with topical stasis eczema on the left lower extremity. In May 2003, he was observed to have ulcers on both legs but was unable to go to the treating facility at another location due to lack of transportation. An ensuing clinic note in May indicates that the skin had well-demarcated hyperkeratotic hyperpigmented macular lesions with a central ulcer with clear fluid and tenderness to pressure. A June 2003 VA outpatient clinic note reflects that the Veteran sought treatment with a complaint that the ulcers on the left leg and ankle had broken down very badly and had gotten worse. It was reported that there was redness surrounding the ulcer and it was covered with purulent exudate. He complained of severe pain and tenderness. The diagnostic impression was stasis ulcer with superadded infection and cellulitis - stable. The treatment plan was to thoroughly clean the ulcer with saline and apply medication, including Silvadene and Rocephin, and prescribe Ibuprofen for pain control. It was noted that he would be sent to Shreveport VA for evaluation and possible admission for intravenous antibiotic treatment and possible whirlpool therapy. An April 2004 VA outpatient clinic note indicated that the Veteran had typical stasis dermatitis on the left lower extremity with thickened scaly erythematous lesions. It was recorded that this would be treated with oral antibiotic, TED [thromboembolism-deterrent hose] stockings, and elevation of feet. On follow-up for stasis dermatitis in May 2004, it was noted that the Veteran was much better and that the ulcer appeared to be almost gone. He denied any new problems. In November 2004, he was evaluated for an ulcer on the left lower leg. The Veteran was counseled on the long-term adverse effects of tobacco use on the body, to include cardiovascular disease. On examination, no drainage was observed. It was noted that the appellant had skin changes of chronic venous stasis of both lower extremities. The plan was to treat the ulcer with triple antibiotic ointment and this was given to him. He was also started on Keflex. Two weeks later, it was reported that the appellant still had skin changes of chronic venous stasis but that the ulcer was healing. It was also noted that he had left-sided weakness from an old stroke. The Veteran sought treatment at Wadley Regional Medical Center for ulcers on his lower extremities in December 2004. He was instructed to wear compression stockings. A consultation record dated in January 2005 from Wadley was received indicating that they had seen the Veteran in the last year or so, and that he had had chronic ulcerations on the medial aspect of both lower extremities that were felt to be compatible with varicose veins. It was noted that at that time, he was apparently treated with compression dressings and ultimately placed into compression hose that he was able to get through VA. On the current visit, the appellant was observed to have small area of crusting and ulceration on the medial aspect of both lower legs and had come in to try to control the problem before it got bad. The physician stated that of note was the fact that the zippers that were placed on the inside of each leg rubbed in and around the area where he was having the ulcerations. It was reported that another doctor had seen him earlier that week and recommended padding (Soft-Foam) but that the Veteran indicated he could not place these into his stockings because of his previous stroke. On examination, the wounds were measured. It was reported that there had been no change in the wound condition since the last visit and that the Veteran had been more or less adherent to the plan although he had not been able to use the Soft-Foam. The impression was varicose vein with ulceration with edema largely controlled by the compression hose. The plan for care consisted of use of Iodosorb and Xeroflo for the wound, and placing him into multilayer compression garments to achieve healing. It was noted that since VA had recognized the need for compression hose originally, he might still be able to obtain them from that source. The physician stated that multilayer compression would be placed on both lower extremities. It was commented that the Veteran currently lived in a homeless shelter and apparently recognized the importance of continued compression because he had gone six months or longer apparently without recurrence. Subsequent Wadley records dated in February 2005 indicate that he developed a new area of inflammation on the left leg that was felt to probably be due to rubbing of the hosiery. The Veteran submitted evidence of several prescription requests dated between 2003 and 2005 for Jobst stockings. The Veteran returned to VA in November 2005 with a complaint of "blood clot in my left leg." He was observed to be wearing Jobst stockings and stated that he had a history of blood clots. He stated that he wore compression stockings all the time and said that his leg was warm to the touch the previous night. Following examination, the Veteran was seen in the emergency department on that same date for further evaluation. Examination of the left lower extremity disclosed that the vein was inflamed and the area was tender to touch. Assessments of superficial phlebitis, tobacco use disorder and stasis ulcer were rendered. The physician noted that the appellant would be treated with oral antibiotics and that he should continue with TED stockings. He was counseled to discharge his tobacco habit and instructed to go to the emergency room if he developed swelling and pain in the calf. A claim was received in July 2005 for compensation under 38 U.S.C.A. § 1151 for additional disability of left lower extremity vascular pathology due to VA outpatient treatment between 2004 and 2005. The Veteran stated that he felt that his venous stasis ulcers had been neglected by VA and as such, he had sustained irreversible damage. The appellant was afforded a VA arteries and vein examination in January 2007. Pertinent background and clinical history was provided. It was reported that the appellant had a history of varicose veins and stasis ulcers of both lower extremities since the 1970s with swelling for which he had worn support hose since that time. It was noted that current treatment for his varicose veins consisted of using compression hosiery. The appellant related that the condition did not affect his occupation and that he had stopped working in 1992 because of a back injury. Physical examination disclosed visible and palpable varicose veins of both lower extremities. There was no active ulcer of either leg. Slight edema was present as well as stasis pigmentation changes. The diagnosis was chronic venostasis treated with compression hosiery with no active ulcers at that time. It was the examiner's opinion that the Veteran's complaint of improperly treated ulcers was not found to be valid pertaining to his treatment at the Texarkana Clinic in October and November 2004. The examiner related that it was clear from review of the records that the appellant had been properly evaluated and treated for the leg ulcer, just as he had been properly evaluated and treated for leg ulcers in the past. The examining physician stated "I see no indication from the C-file or the computer records that there was any carelessness on the part of the VA or negligence or lack of proper skill or error in judgment or similar instance of fault to the VA can be found." It was also his conclusion that VA did not cause a left or a right leg condition. The Veteran was afforded a VA vein and artery examination in May 2012. He was reported to have stated that the skin condition of the left ankle was "status quo," was neither bad nor good, and that the ulcer was not resolved or worsening. He related that ulcers had been present for the past 5-6 years and had never healed. He reported that there had been no ulcer treatment for the past 5-6 years because physicians had informed him that there was nothing that could be done. Pertinent clinical history from the claims folder was provided in detail. Following examination, the examiner stated that based on the information obtained, there was no additional disability following treatment that the Veteran had received from VA. It was related that this condition was subject to recurrences and did respond to conservative medical management. It was noted that the appellant did not have problems with ambulation due to his vascular condition, had not had any recent recurrences, hospitalizations, operations or amputations of his lower extremities. The examiner stated that although the Veteran claimed that he had ulcers on his lower extremities, no ulcers were observed on the current occasion, although there was scar tissue as a result of the healing process. The examiner stated that appropriate care had been rendered to the Veteran to date. The Veteran presented testimony at a personal hearing in December 2011 to the effect that while being treated at VA Texarkana, Arkansas VA facility in 2004, he sought treatment for a circulatory problem but was not given adequate care. He stated that he repeatedly asked his VA doctors for a medicated cast (Unna boot) for a left leg ulcer because this was the only thing that was effective. He stated that the doctor kept making excuses for not giving it to him and finally told him they did not have that item. He related that he was only given some antibiotics, topical ointment and a dozen small bandages, and was told this was all that would be done. The Veteran testified that the ulcer did not heal and that he subsequently went to a private doctor at a wound care center in Texarkana where he was told the wound was so severe that amputation of the left leg was indicated. He said that he declined the procedure and said that the doctor then told him exactly what he had to do to save the leg, including a new compression with medication, instructions to stand no more than 10 minutes on the leg, and frequently propping the leg up. He related that his private physician told him that if he had been treated with an Unna boot previously, the ulcer would not have gotten so bad including dead skin tissue around the area of the ulcer. It was the Veteran's overall assertion that if VA had given him the special (Unna) boot that he required, the ulcer would have completely healed and the leg would not have gotten worse "to the point of no return" for which it was felt amputation was needed. The appellant testified that he currently had pain in the left foot and ankle in the area of the prior ulcer, especially when he stood or walked, and that this was because he did not receive proper treatment at VA for the ulcerated condition in the past. The record reflects that VA subsequently obtained a Veterans Health Administration (VHA) medical expert opinion in this regard. In response, a clinical report dated in April 2012 was received from a VA vascular surgery attending physician who provided history that the Veteran was evaluated from March 2003 through November 2004 at the Texarkana VA for chronic venous insufficiency of the lower extremities with associated venous ulcerations. The physician explained that the standard of care for venous ulcerations ideally included elevation for venous insufficiency with non-invasive vascular studies, exclusion of significant arterial occlusive disease and compression therapy with wound care. Among other things, the VA medical expert stated that in reviewing the documentation, the evidence clearly showed that the Veteran received Jobst compression stockings through VA in May 2004 and that two notes in April and 2004 and November 2005 documented compression as part of the treatment plan. It was reported that when an ulcer was documented, note was also made of any accompanying infection that was treated appropriately with oral antibiotics and topical wound care. It was indicated that although compression therapy was not advised or noted with every visit, the series of notes suggested that compression was a mainstay of his care along with local wound care and bandages. The physician stated that review of the chart suggested healing and recurrence of venous ulcerations as well as some difficulty on the Veteran's part with compliance. As an example of this, it was noted that in June 2003, he was clearly advised to seek inpatient care at Shreveport VA for intravenous antibiotics and possible hyperbaric oxygen treatment but that there were no records that indicated that he complied with this recommendation. The physician stated that treatment of recurrent venous stasis ulcers was a challenging problem and that compression had been identified as improving ulcer healing rates compared to no compression, and that multi-component systems such as the Unna boot might be more effective than single compression systems. It was noted, however, that Unna boots had disadvantages because ulcers could not be monitored after the boot was applied, the dressing were changed infrequently, and the degree of compression exerted by the boot was operator dependent and not quantifiable in routine practice. She related that it was not known which method of compression or topical dressings were most effective in management of venous stasis ulcers but that it was clear that even good compression therapy and wound care, many stasis ulcers failed to heal. The examiner stated that in reviewing the Wadley wound care records, that even with multi-component compression garments and frequent monitoring, the Veteran's ulceration recurred as shown by a note on a visit in February 2005. In summary, it was her opinion that given the Veteran's history of chronic and recurrent venous stasis ulcerations, it seemed unlikely (less than a 50 percent probability) that VA's treatment of his left lower extremity ulcer resulted in additional disability or pain. Legal Analysis The Veteran essentially argues that he developed more substantial left lower extremity venous pathology as the result of VA's failure to properly treat chronic venous stasis of the left lower extremity with associated ulcerations. The Board finds, however, that although the appellant asserts that he developed additional disability of the left lower extremity as the result of lack of proper skill, error in judgment, or similar instance of fault on VA's part, there is nothing in the VA or private (Wadley Hospital) records to support this contention. In this regard, the evidence clearly documents that when he went to Wadley for treatment in December 2004, he was advised to wear compression stockings as VA had previously done. The January 2005 Wadley medical report reflects that he had been a patient there previously indicating that he had a recurring problem with leg ulcers. The decision was made to place him into multilayer compression to achieve healing, but even this did not resolve the problem because the appellant was seen the following month for a recurrence of a left leg ulcer. Therefore, contrary to his testimony, the treatment at Wadley did not resolve the problem. The record reflects he subsequently went back to the use of compression stockings, and when seen by VA in November 2005, the assessments included stasis ulcer. The Board would also point out that the Wadley records absolutely do not indicate that left leg amputation was considered, as the Veteran avers, nor is it recorded that any physician at Wadley told him that if VA had used an Unna boot, his leg would not have gotten worse. As referenced in VA medical reports during the course of this appeal, the venous stasis condition that the Veteran has responded to conservative medical management but was subject to recurrence. The evidence clearly demonstrates that this was the clinical course in the Veteran's case despite ongoing treatment by VA and the private provider. None of the evidence suggests that the appellant did not receive the care to which he was entitled after he came into VA care or that his condition worsened. In fact, the report of a recent VA examination in May 2012 states that he has no additional disability of the leg. It was pointed out at that time that although scar tissue remained from the healing process, he was ambulatory with no problem, and had had no recent recurrences, hospitalizations, operations or amputations of his lower extremities. No ulcers were observed. It was reported at that time that the appellant stated that he had sought no treatment for left lower leg venous stasis for 5-6 years. This suggests that the condition has stabilized, and clearly militates against a finding that he developed a more pathological process of the left lower extremity after VA treatment between 2004 and 2005. VA examiners in 2007 and 2012 unequivocally determined that the Veteran had been rendered appropriate care by VA for stasis ulcers and that there was no indication or evidence of any carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA. The Board reiterates that the Veteran's private provider reports also did not find any fault in VA's treatment of stasis ulcers. The Board went further and obtained a review of the record and an opinion from a VHA medical expert who delineated the pathology and treatment course of chronic venous insufficiency with associated venous ulcerations in great detail as reported above. She determined that it was unlikely that VA's treatment of his left lower extremity ulcer resulted in additional disability or pain, and provided well reasoned rationale for this conclusion. The appellant has not presented any competent evidence to the contrary that refutes these conclusions. The Board would point out that the Veteran is competent to report the symptoms he has experienced throughout the years with left lower stasis dermatitis and ulcer. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the question of whether there was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the VA's part is a complex medical issue that is beyond his expertise. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote four that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). This question was addressed by the VA examiners in detail in 2012 and most recently in April 2013 who determined that the appellant did not receive inadequate or inappropriate care by VA relative to venous stasis. Therefore, after carefully considering the evidence, the Board concludes that the legal requirements are not met for compensation under 38 U.S.C.A. § 1151. The record contains no evidence to substantiate the Veteran's contentions that he developed additional disability of the left lower extremity due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment. Rather, the evidence demonstrates that the Veteran's symptoms were treated appropriately and waxed and waned consistent with the disease process. Moreover, on more recent VA examination, the objective evidence found that he has no additional disability of the left lower extremity due to stasis dermatitis and ulcer. The Board acknowledges that the Veteran may subjectively believe that there was a failure by VA to properly monitor and manage his left lower extremity venous condition and that he has additional disability as a result thereof. As discussed above, however, the question of whether he has additional disability in which the proximate cause was a failure on VA's part is beyond the expertise of a layman's competence. See Jandreau, supra. The clinical professionals have the greater skill. In this instance, the more competent and probative evidence does not establish negligence, lack or proper skill or fault on VA's part in treating the venous condition. In summary, in the absence of competent evidence which demonstrates additional disability as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in furnishing medical treatment between 2004 and 2005; there is no unforeseeable result; as such, the Board concludes that compensation under 38 U.S.C.A. § 1151 for additional disability of left lower extremity venous stasis and ulcer disability is not warranted. The preponderance of the evidence is against the claim and it is denied. (CONTINUED ON NEXT PAGE) ORDER Compensation under 38 U.S.C.A. § 1151 for left lower extremity venous pathology is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs