Citation Nr: 1328264 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-23 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for right above the knee amputation, claimed to have been caused by treatment received at VA for decubitus ulcers in January and February 2005. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active military service from August 1970 to August 1973. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. The issue of special monthly compensation based on the need for aid and attendance has been raised by the record in a January 2010 written statement from the Veteran, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to the February 22, 2005, right above the knee amputation performed at the Memphis VA Medical Center (VAMC), the Veteran was receiving treatment since June 2004 at the Birmingham VAMC for decubitus ulcers on both lower extremities. 2. The Veteran experienced an additional disability of loss of the right leg above the knee following surgery at the Memphis VAMC on February 22, 2005. 3. The VA treatment for decubitus ulcers received by the Veteran in January and February 2005 was not rendered with carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. 4. There was no lack of informed consent for, or occurrence of an event not reasonably foreseeable during, VA treatment in January and February 2005. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C.A. § 1151 for an additional disability of a right above the knee amputation, claimed to have been caused by VA treatment in January and February 2005, 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 FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Here, notice was provided to the Veteran in December 2006, prior to the initial adjudication of the claim in August 2007. The Veteran was notified what information and evidence is needed to substantiate a claim for compensation under 38 U.S.C. § 1151, as well as of VA and the Veteran's respective duties for obtaining evidence. Although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the Veteran's claim, such error was harmless given that service connection is being denied; hence, no rating or effective date will be assigned with respect to this claimed condition. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, the Board concludes that VA satisfied its duties to notify the Veteran. VA satisfied its duty to assist the Veteran in the development of the claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes VA treatment records, state veterans home records, and the Veteran's lay statements. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the issue that has not been obtained. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's appeal. With regard to the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151, no VA examination or opinion has been obtained. Under the VCAA, VA must provide an examination when there is (A) competent evidence of a current disability that (B) may be associated with service, but (C) there is insufficient medical evidence to make a decision on the claim. 38 U.S.C.A. § 5103A(d). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has addressed the appropriate standard to be applied in determining whether an examination is warranted under this statute. In Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that, the current disability may be associated with service. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, the only evidence that has been offered in support of the contention that the Veteran's additional disability resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA or that it was not reasonably foreseeable are the conclusory generalized lay statements of the Veteran, which are outweighed by medical evidence and are factually contradicted by the other evidence of record. Further, there is sufficient medical evidence in this case to make a decision on this claim. The VA treatment records associated with the claims file provide a complete picture of the treatment of the Veteran's pressure ulcers and show that they ultimately caused the amputation of the right leg above the knee, as discussed below. For these reasons, the Board finds that the evidence of record is sufficient to decide the claim and no VA examination or opinion is warranted. The Veteran was offered the opportunity to testify at a hearing before the Board, but declined. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Entitlement to 38 U.S.C.A. § 1151 Compensation Under the provisions of 38 U.S.C.A. § 1151, if VA hospitalization or medical or surgical treatment causes additional disability which is not the result of the veteran's own willful misconduct or failure to follow instructions, disability compensation may be awarded for a "qualifying additional disability" in the same manner as if the additional disability were service connected. See 38 C.F.R. § 3.361. If additional disability is present, two principal criteria apply in determining whether it is compensable within the ambit of 38 U.S.C.A. § 1151. First, the additional disability may qualify for compensation if the disability is not the result of the veteran's willful misconduct and the disability was caused by hospital care, medical or surgical treatment, or examination provided under the laws administered by VA. Second, in order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. These provisions of law apply to claims received by VA on or after October 1, 1997. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361(a). To determine whether an additional disability was caused by medical treatment, VA compares the veteran's condition immediately before the beginning of such treatment to his condition thereafter. To establish causation, the evidence must show that the treatment resulted in the veteran's additional disability. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability does not establish cause. Disability that is due to the continuance or natural progress of the disease is not due to VA treatment 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(b), (c). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment proximately caused a veteran's additional disability, it must be shown that the medical treatment caused the additional disability, and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or that VA furnished the medical treatment without the veteran's informed consent. Whether the proximate cause of a veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d). To determine whether there was informed consent, VA will consider whether the health care provider substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Id. Regulations further provide that compensation is not payable for the necessary consequences of VA treatment properly administered with the express or implied consent of the veteran or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain or intended to result from the treatment provided. Consequences otherwise certain or intended to result from treatment will not be considered uncertain or unintended solely because it had not been determined, at the time consent was given, whether that treatment would, in fact, be administered. 38 C.F.R. § 3.361. In this case, the Veteran contends that his right above the knee amputation was caused by the treatment or lack of treatment received at the Birmingham VAMC in January and February 2005. As such, the Veteran maintained that he is entitled to VA disability benefits under 38 U.S.C.A. § 1151. In his November 2006 claim, the Veteran stated that a VA doctor at the Birmingham VAMC cancelled his doctors appointments over a period of 6 weeks during which time he received no medical attention and the ulcer on his right knee continued to worsen. He stated that this delay caused his leg to deteriorate to the point that amputation of the right knee was required. In his August 2007 Notice of Disagreement, the Veteran contended that, due to the lack of oversight from his attending physician, he was forced to have a leg amputated. As detailed in his June 2009 Substantive Appeal, the Veteran contends that the cancellation of his doctors appointments by a VA doctor over a period of three to six weeks caused the ulcer on his right knee to continue to worsen without medical attention and that, once he was seen, it was too late to prevent the amputation of his right leg above the knee. He stated that he was scheduled for an appointment at the Birmingham VAMC with a VA doctor to evaluate his right foot, but when he came in his usual wound care nurse was out sick. He stated the nurse assisting him spoke with the VA doctor but was told she would not be coming to look at the Veteran's leg because of another patient. According to the Veteran, the VA doctor had the nurse provide him with solution spray and gauze and had her tell him to keep the wound clean and come back in three weeks. He stated that, when he did come in for this appointment, the VA doctor said that the ulcer on his right leg may have gangrene and scheduled VA transportation to the Memphis VAMC, at which the surgeons at the Memphis VAMC told him that his right leg would have to be amputated. Thus, the Veteran's main contention is that, if the VA doctor had seen him and treated his wound in the first three weeks, he would still have his right leg. First, the Board finds that the Veteran suffered an additional disability of the loss of his right leg following treatment at the Birmingham VAMC. VA treatment records reflect that, leading up to the surgery, the Veteran was receiving outpatient wound care beginning in June 2004 for decubitus ulcers on his legs. On February 8, 2005, the Veteran was transferred from the Birmingham VAMC to the Memphis VAMC for further treatment for decubitus ulcers. On February 22, 2005, the Veteran underwent right above the knee amputation at the Memphis VAMC, which resulted in additional disability. Thus, the outcome of the Veteran's claim for 38 U.S.C.A. § 1151 rests on whether the additional disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault, or was the result of an event that was not reasonably foreseeable. In this case, the weight of the evidence demonstrates that compensation under 38 U.S.C.A. § 1151 is not warranted because the VA treatment provided for the Veteran's decubitus ulcers was not proximately caused by 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 that the deterioration of the Veteran's leg was the result of an event that was not reasonably foreseeable. The evidence of record reflects that the Veteran received treatment from the Birmingham VAMC for multiple decubitus ulcers of both lower extremities beginning in June 2004. A June 2004 VA treatment record notes the presence of a small crescent shaped area of dark discoloration on the pad of the Veteran's right great toe. A subsequent June 2004 VA treatment record documents a Stage III, full thickness ulcer on the left medial malleolus and a Stage II, partial thickness ulcer on the right great toe. The record reflects both ulcers were cleansed with wound cleanser, Acticoat silver was applied, and the ulcers were covered with sterile gauze. The Veteran's caregiver was also instructed in wound care. An October 2004 VA treatment record notes that the Veteran and his caregiver were instructed on wound care and how to take antibiotics in connection with the pressure ulcers and that they each vocalized their understanding. The record reflects that the Veteran would return in two weeks to reassess the status of his pressure ulcers. A November 2004 treatment record notes the ulcer on the left medial malleolus had become a Stage IV, full thickness ulcer. The record reflects the ulcer was irrigated with wound cleanser, debrided sharply, packed with sterile gauze saturated with hydrogel, covered with dry gauze, and secured with Kerlix and tape. A December 20, 2004 VA treatment record notes the Veteran had a Stage III, full thickness ulcer on the medial aspect adjacent to the knee on the right leg as well as an injury to the right great toe with complete nail plate removal. The record reflects the ulcer and great toe were cleansed, Acticoat silver was applied, and the wounds were covered with sterile gauze and wrapped in Kerlix. The treatment record notes the continued presence of the Stage IV, full thickness ulcer on the left malleolus. Finally, the record notes refills of Mesalt, cleanser, and sterile gauze were ordered and that the Veteran's caretaker had indicated she would continue wound care at home. A December 23, 2004 treatment record notes the Veteran's caretaker called the Birmingham VAMC regarding wound care and that her questions were answered. The record notes the Veteran had a follow up appointment in three weeks regarding his ulcers and that his caregiver would call back if she had any further problems. VA treatment records reflect that the Veteran was seen for evaluation and wound care on January 24, 2005. The nurse noted the Veteran had an ulcer on the inner aspect of the right knee with 50 percent granulated tissue and 50 percent yellow slough or brownish devitalized tissue. It is also noted both the Veteran's great toes were dressed and he had an area on the outer left ankle with red granulation tissue. The record indicates the area on the right knee may need debridement soon and that the Veteran would return in two to three weeks. On January 27, 2005, the VA doctor wrote an addendum to the January 24, 2005 VA treatment record, indicates the Veteran initially commented to her that his caregiver was not providing care, but then said she was taking good care of his wounds and that he receives wound care daily. The VA doctor also offered to order labs regarding the wound progression, but the Veteran declined treatment. The addendum also reflects that the Veteran asked the VA doctor to order a different leg separator and stated the one he had "is to[o] small." The addendum noted that the Veteran had not donned the device correctly and that the VA doctor attempted to instruct him regarding how to properly wear the device, but that he was not receptive to her instruction. On February 7, 2005, according to VA treatment records, the Veteran had an appointment at the Birmingham VAMC to reevaluate the pressure ulcers. The Veteran reported he had a new pressure ulcer that developed since he was last seen. The records indicate the Veteran had a Stage II, partial thickness ulcer on the right heel; a large, Stage IV, full thickness ulcer on the right knee that was bleeding profusely; a large, Stage IV, full thickness ulcer on the right popliteal area with exposed tendon; and, a Stage III, full thickness ulcer on the left malleolus that bleeds easily and soaked several layers of dressing. The records noted the Veteran's ulcers have gotten progressively worse and that the Veteran was being transferred to the Memphis VAMC for further evaluation. Additionally, the records noted that the Veteran's caregiver had again been instructed regarding wound care. On February 8, 2005, the Veteran was admitted to the Memphis VAMC for multiple decubitus ulcers of both lower extremities. According to VA treatment records, the Veteran stated the decubitus ulcers had been on his legs for "about a month." The record indicated the Veteran blamed everyone but himself for his ulcers. The Veteran stated that his knees kept knocking together in his wheelchair, but did not stop using his wheelchair or do anything to keep his legs separated. The record noted that the Veteran was resistant to being placed on bedrest and that the Veteran stated he would rather stay up in wheelchair and visit his friends. The February 8, 2005 treatment record noted a Stage IV right medial knee decubitus ulcer; Stage IV right popliteal knee decubitus ulcer; Stage III right heel decubitus ulcer; and, Stage II left lateral malleolus of ankle decubitus ulcer. The record notes that, while conservative treatment of the decubitus ulcers was still being attempted, the Veteran would probably need right lower extremity above the knee amputation and possibly left lower extremity below the knee amputation. A February 9, 2005 Memphis VAMC treatment record notes the Veteran was informed he would require amputation of the right leg and possibly the left leg as well, but that he was in denial. A February 10, 2005 Memphis VAMC treatment record notes the presence of a large ulcer of medial aspect of the right knee with full exposure of the joint; a Stage II ulcer of the left lateral malleolus; and a Stage IV ulcer of the right heel. The record also notes the need for transfemoral amputation was discussed with the Veteran in detail. A February 16, 2005 Memphis VAMC treatment record notes the Veteran had exposed bone on his right knee. He was informed that he could develop a severe infection in the leg that could be life threatening if it was not amputated. The Veteran indicated his understanding of the risk, but expressed his wish to continue with conservative treatment of local wound care. A February 10, 2005 Memphis VAMC treatment record notes the presence of a Stage IV pressure ulcer on the Veteran's right knee joint and that amputation was recommended. The record notes that the recommendation for amputation was discussed with the Veteran in detail. On February 22, 2005, as reflected by Memphis VAMC treatment records, the Veteran's right leg above the knee was amputated and there were no noted complications during surgery. In his June 2009 Substantive Appeal, the Veteran acknowledges that he was informed of why the procedure to amputate his right leg above the knee was necessary and signed the consent form. Based on the foregoing, the Board finds that the weight of the evidence of record demonstrates that the January and February 2005 VA treatment of the Veteran's decubitus ulcers was not render with carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. As noted above, the Veteran contends that the VA doctor at the Birmingham VAMC cancelled appointments in the three weeks precipitating his transfer to the Memphis VAMC for further treatment of his decubitus ulcers on his lower extremities and subsequent right above knee amputation; however, this contention is not supported by the evidence of record. First, the VA treatment records from the Birmingham VAMC dated in the months preceding the February 8, 2005 transfer to the Memphis VAMC do not reflect that any of the appointments were cancelled. Rather, VA treatment records reflect the Veteran was seen for evaluation and wound care on January 24, 2005 and then again, two weeks later on February 7, 2005. Prior to these appointments, the Veteran had been seen approximately once a month for evaluation and wound care with regard to his decubitus ulcers on his lower extremities, with documented evaluations on October 26, 2004, November 8, 2004, and December 20, 2004. As such, the Veteran's contention that his appointments were repeatedly, or at all, cancelled is not supported by the contemporaneous VA treatment records. The specific entries on the VA treatment records were made contemporaneously to treatment of the ulcers and are more probative. The Veteran also contends that his caregiver and fiancé called the VA doctor's office regarding his right toenail falling off and his foot turning dark near the time of his February 7, 2005 appointment. However, VA treatment records reflect that the Veteran's caregiver actually called on December 23, 2004 regarding wound care, that her questions were answered, and that she indicated she would call back if she had any further problems. Additionally, the December 20, 2004 VA treatment record notes complete nail plate removal of the great toe. The Veteran's timeline of events with regard to the treatment of his ulcers is contradicted by the VA treatment records. These inconsistencies in the record weigh against the Veteran's credibility with regard to the VA appointments he claims were cancelled. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). The Veteran's statements are directly contradicted by the VA treatment records that reflect he was actually seen twice during the three week period leading up to the transfer to the Memphis VAMC and his contention otherwise is not supported by the evidence of record. Given the repeated inconsistencies in the Veteran's statements, the Board finds him to be an unreliable historian. As such, the Board accords the Veteran's statements regarding the cancellation of his VA treatment little probative weight and finds that, in fact, the Veteran's VA appointments were not cancelled. Conversely, the Board accords the VA treatment records that reflect the Veteran was seen twice during the three weeks preceding his transfer to the Memphis VAMC greater probative weight. There is no indication in the record, nor has the Veteran alleged, that the VA treatment records are incomplete. As such, the Board presumes the VA treatment records accurately document the history of the Veteran's treatment for ulcers at VA. See Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of regularity to RO actions). Additionally, the Veteran contends that, had the VA doctor not cancelled his appointments, a contention not supported by the record as established above, his right leg would not have needed to be amputated. The Board recognizes that the Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge (i.e., observing ulcers on his legs). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran does not have the necessary medical training and/or expertise to opine that his right above the knee amputation would not have been necessary if not for a claimed omission of VA treatment, including specifically to an opinion of VA fault or negligence in the rendering of medical care, especially where the alleged fault is based upon a factually inaccurate assumption or fact that in this case did not occur, namely, the claimed cancellation of the Veteran's appointments. Such opinion of VA fault requires both knowledge of what the standard of medical care should have been, how the standard was breached by VA medical provides, and the complex question of how the breach of standard of medical care was the cause of his right above the knee amputation. For these reasons, the Board finds that the above the knee amputation was not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in rendering treatment in January and February 2005. In addition, the Board finds that there was no absence of informed consent shown, and the evidence does not show the occurrence of an event that is not reasonably foreseeable during VA treatment beginning in June 2004. See 38 C.F.R. § 3.361(d)(2). There is no assertion that any VA treatment was nonconsensual. Additionally, loss of leg was a foreseeable risk of the continued deterioration of the Veteran's decubitus ulcers. A February 9, 2005 VA treatment record reflects that the Veteran was specifically told that his right leg may have to be amputated. For these reasons, the Board finds that a preponderance of the evidence is against the claim for compensation for a right above the knee amputation under 38 U.S.C.A. § 1151, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a right above knee amputation, claimed to have been caused by treatment received at the Birmingham VAMC in January and February 2005, is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs