Citation Nr: 1329443	
Decision Date: 09/13/13    Archive Date: 09/20/13

DOCKET NO.  01-10 186	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
Indianapolis, Indiana


THE ISSUE

Entitlement to compensation benefits under the provisions of 
38 U.S.C.A. § 1151 for additional disability related to a 
right foot disorder. 


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARINGS ON APPEAL

Veteran, Veteran's son


ATTORNEY FOR THE BOARD

J. D. Deane, Counsel


INTRODUCTION

The Veteran served on active duty from June 1974 to December 
1974.  This matter comes properly before the Board of 
Veterans' Appeals (Board) on appeal from a March 2001 rating 
decision by the Department of Veterans Affairs (VA) Regional 
Office in Indianapolis, Indiana (RO).  

This case was remanded by the Board in November 2003, 
December 2006, and December 2007 for additional development. 

In March 2009, the Board issued a decision which denied the 
claim on appeal. Thereafter, the Veteran appealed the 
Board's decision to the United States Court of Appeals for 
Veterans Claims (Court).  In a September 2010 Memorandum 
Decision, the Court set aside the Board's March 2009 
decision and remanded the claim for further adjudication.  
The Court issued a Mandate in December 2010, noting that 
time for reconsideration, review, or appeal of the Court's 
decision had expired.

In May 2011, the Board issued yet another decision which 
denied the claim on appeal.  Thereafter, the Veteran again 
appealed the Board's decision to the Court.  In a December 
2012 Memorandum Decision, the Court set aside the Board's 
May 2011 decision and remanded the claim for further 
adjudication.  

In January 2013, the Secretary filed a motion for 
reconsideration or, in the alternative, for a panel 
decision.  The Court issued an Order in February 2013, 
noting that the Secretary's motion for reconsideration was 
denied.  The Court issued an Order in March 2013, noting 
that the Secretary's motion for panel decision was granted.  
In addition, the Court ordered, by the panel, that the 
single-judge memorandum decision remained the decision of 
the Court.  The Court issued a Judgment in April 2013 as 
well as issued a Mandate in June 2013, noting that the time 
for reconsideration, review, or appeal of the Court's 
decision had expired.


FINDING OF FACT

The medical evidence of record does not show that the 
Veteran's right foot disorder was the result of 
carelessness, negligence, lack of proper skill, error in 
judgment, or similar instance of fault by VA medical 
personnel, or that it was due to an event not reasonably 
foreseeable in furnishing the Veteran's VA medical 
treatment. 


CONCLUSION OF LAW

The criteria for compensation under 38 U.S.C.A. § 1151 for 
additional disability related to right foot disorder have 
not been met.  38 U.S.C.A. §§ 1151, 5103A, 5107 (West 2002 & 
Supp 2012); 38 C.F.R. §§ 3.159, 3.361, 17.32 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

With respect to the Veteran's claim for entitlement to 
compensation benefits under the provisions of 38 U.S.C.A. § 
1151 herein, VA has met all statutory and regulatory notice 
and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, 3.326.

The RO's June 2000 and February 2001 letters, as well as the 
May 2001, May 2004 and January 2007 letters, provided after 
the initial adjudication of the claim on appeal in March 
2001, advised the Veteran of the foregoing elements of the 
notice requirements.  See Quartuccio v. Principi, 16 Vet. 
App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 
384, 394 (1993).  These letters also provided the Veteran 
with notice of what type of information and evidence was 
needed to establish disability ratings, as well as notice of 
the type of evidence necessary to establish an effective 
date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 
486 (2006).  Accordingly, with these letters, the RO 
effectively satisfied the remaining notice requirements with 
respect to the issue on appeal.  After the notice letters 
were provided to the Veteran, the claim was readjudicated in 
an August 2007 supplemental statement of the case.  Prickett 
v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (finding that 
VA cured failure to afford statutory notice to claimant 
prior to initial rating decision by issuing notification 
letter after decision and readjudicating claim and notifying 
claimant of such readjudication in the statement of the 
case).

In addition, the duty to assist the Veteran has also been 
satisfied in this case.  The Veteran's available service 
treatment records, service personnel records, post-service 
VA treatment records, and records from a federal tort claim 
have been obtained.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  
The Veteran was also provided with opinions from independent 
medical experts (IME) obtained by VA in conjunction with the 
claim on appeal in December 2005 and August 2006 to 
determine the cause and proximate cause of his right foot 
disorder.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see 
McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).  The 
Board has found that the IME opinion obtained by VA in 
August 2006 was adequate, as it was based upon a complete 
review of the evidence of record as well as consideration of 
the Veteran's lay statements.  See Barr v. Nicholson, 21 
Vet. App. 303, 311 (2007).  

The Veteran's claim was previously before the Board in 
November 2003, December 2006, and December 2007 and remanded 
for additional evidentiary development, to include obtaining 
outstanding treatment records as well as affording the 
Veteran a hearing and additional VCAA notice.  The Board 
finds substantial compliance with the November 2003, 
December 2006, and December 2007 remand orders.  See D'Aries 
v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 
Vet. App. 141, 146-47 (1999).  

As there is no indication that any failure on the part of VA 
to provide additional notice or assistance reasonably 
affects the outcome of this case, the Board finds that any 
such failure is harmless.  See Mayfield v. Nicholson, 20 
Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. 
at 486. 

Under VA laws and regulations, when a veteran suffers 
additional disability or death as a result of training, 
hospital care, medical or surgical treatment, or an 
examination furnished by the VA, disability compensation 
shall be awarded in the same manner as if such disability or 
death was service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. 
§§ 3.358, 3.361.  For claims filed after October 1, 1997, a 
claimant is required to show fault or negligence in medical 
treatment.  For claims filed prior to October 1, 1997, a 
claimant is not required to show fault or negligence in 
medical treatment.  See Brown v. Gardner, 115 S. Ct. 552 
(1994) (language of statute was plain and did not require 
showing of fault).  Since the Veteran filed his claim after 
that date, he must show some degree of fault, and more 
specifically, that the proximate cause of his disability was 
due to carelessness, negligence, lack of proper skill, error 
in judgment, or similar instance of fault on the part of the 
VA in furnishing medical care or was an event not reasonably 
foreseeable.  38 U.S.C.A. § 1151(a)(1); 38 C.F.R. § 3.361. 

In determining that additional disability exists, VA 
compares the veteran's condition immediately before the 
beginning of the hospital care, medical or surgical 
treatment, examination, training and rehabilitation 
services, or compensated work therapy program upon which the 
claim is based to the veteran's condition after such care, 
treatment, examination, services, or program has stopped.  
38 C.F.R. § 3.361(b). 

To establish causation, the evidence must show that the 
hospital care, medical or surgical treatment, or examination 
resulted in the veteran's additional disability or death. 
Merely showing that a Veteran received care, treatment, or 
examination and that that the Veteran has an additional 
disability or died does not establish cause.  38 C.F.R. § 
3.361(c)(1).  Hospital care, medical or surgical treatment, 
or examination cannot cause the continuance or natural 
progress of a disease or injury for which the care, 
treatment, or examination was furnished unless VA's failure 
to timely diagnoses and properly treat the disease or injury 
proximately caused the continuance or natural progress.  38 
C.F.R. § 3.361(c)(2).  Additional disability or death caused 
by a veteran's failure to follow properly given medical 
instructions is not caused by hospital care, medical or 
surgical treatment, or examination.  38 C.F.R. § 
3.361(c)(3). 

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 or death, it must be shown that VA 
failed to exercise the degree of care that would be expected 
of a reasonable health care provider; or, that VA furnished 
the hospital care, medical or surgical treatment, or 
examination without the veteran's informed consent.  To 
determine whether there was informed consent, VA will 
consider whether the health care providers 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.  Consent may be 
express (i.e., given orally or in writing) or implied under 
the circumstances specified in 38 C.F.R. § 17.32(b), as in 
emergency situations.  38 C.F.R. § 3.361(d)(1). 

Informed consent is the freely given consent that follows a 
careful explanation by the practitioner to the patient or 
the patient's surrogate of the proposed diagnostic or 
therapeutic procedure or course of treatment.  The 
practitioner, who has primary responsibility for the patient 
or who will perform the particular procedure or provide the 
treatment, must explain in language understandable to the 
patient or surrogate the nature of a proposed procedure or 
treatment; the expected benefits; reasonably foreseeable 
associated risks, complications or side effects; reasonable 
and available alternatives; and, anticipated results if 
nothing is done.  The patient or surrogate must be given the 
opportunity to ask questions, to indicate comprehension of 
the information provided, and to grant permission freely 
without coercion.  The practitioner must advise the patient 
or surrogate if the proposed treatment is novel or 
unorthodox.  The patient or surrogate may withhold or revoke 
his or her consent at any time.  38 C.F.R. § 17.32(c). 

The second prong of proximate causation requires that the 
veteran's additional disability or death be an event that 
was not reasonably foreseeable.  This fact 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.  38 C.F.R. § 3.361(d)(2). 

In written statements and hearing transcripts of record, the 
Veteran contended that benefits are warranted for his 
currently diagnosed right foot disorder, under the 
provisions of 38 U.S.C.A. § 1151, due to the failure of VA 
medical personnel to provide proper treatment.  
Specifically, the Veteran asserted that VA personnel caused 
his right foot to swell due to negligent treatment, 
misdiagnosed the right foot swelling as an infection, 
performed a surgical procedure on the Veteran without his 
consent, improperly administered anesthesia during a 
surgery, and caused infections in the right foot after the 
surgery was completed due to further negligent treatment. 

The medical evidence of record shows that the Veteran 
complained of right foot and ankle pain on multiple 
occasions in February 1999 and March 1999.  Treatment for 
these complaints included an orthopedic examination on March 
11, 1999, during which tenderness was noted on physical 
examination. 

During March 1999, the Veteran was given numerous right foot 
and ankle x-rays.  A March 5th x-ray report found mild 
spurring of the calcaneous at the plantar tendon insertion.  
A March 11th x-ray report found a "suggestion" of old trauma, 
with no acute osseous pathology.  A March 15th x-ray report 
found moderate degenerative changes.  A March 17th x-ray 
report found degenerative changes without evidence of 
osteomyelitis.  A March 22nd x-ray report found a normal 
right foot and ankle on joint examination.  A March 29th x-
ray report stated there were findings "consistent with 
osteomyelitis" with an atypical distribution.  A second 
March 29th x-ray report found a normal right ankle on joint 
examination. 

The Veteran's pain continued throughout this period, and he 
was scheduled for surgery on March 29, 1999.  Before the 
operation, a Request for Administration of Anesthesia and 
for Performance of Operations and Other Procedures form 
described the operative procedure as an irrigation and 
debridement of a right ankle infection. The consent form 
included the following statement:  "I request the 
performance of the above-named operation or procedure and of 
such additional operations or procedures as are found to be 
necessary or desirable, in the judgment of the professional 
staff of the below-named medical facility, during the course 
of the above-named operation or procedure."  The consent 
form stated that there were no exceptions to surgery or 
anesthesia.  The Veteran signed the consent form. 

The March 29, 1999 VA surgical report stated that an 
incision and drainage of a right posterior ankle abscess was 
performed.  The pre-operative and post-operative diagnoses 
were abscess of right posterior ankle.  The anesthesia was 
listed as an "[a]nkle block." 

The Veteran's right foot complaints continued, and he was 
scheduled for a second surgery on April 15, 1999.  Before 
the operation, a consent form identical to the March 29, 
1999 form stated that the operative procedure was 
debridement and irrigation of an abscess of the right foot.  
The procedure was described as a cleaning of an infected 
foot.  The exceptions to surgery or anesthesia were listed 
as "do nothing."  The Veteran signed the consent form. 

The April 15, 1999 VA surgical report stated that the 
procedures performed were a right ankle incision and 
debridement, a right partial calcaneotectomy, and a right 
ankle bead pouch.  The pre-operative diagnosis was right 
ankle abscess and the post-operative diagnosis was right 
calcaneus osteomyelitis.  The anesthesia was listed as 
"[g]eneral endotracheal."  The report noted that during the 
surgery, a small amount of pus was found in the cancellous 
bone of the calcaneus.  The calcaneotectomy was performed 
following this discovery. 

The Veteran's right foot complaints continued, and he was 
scheduled for a third surgery on April 19, 1999.  Before the 
operation, a consent form identical to the previous consent 
forms stated that the operative procedure was debridement of 
right foot wounds.  The procedure was described as a 
cleaning up foot wounds.  The exceptions to surgery or 
anesthesia were listed as "do nothing."  The Veteran signed 
the consent form. 

The April 19, 1999 VA surgical report stated that the 
procedure performed was an incision and debridement of the 
right ankle.  The pre-operative and post-operative diagnoses 
were right ankle osteomyelitis. The anesthesia was listed as 
"[g]eneral endotracheal." 

The medical evidence of record shows that the Veteran has 
continued to experience a right foot disorder since April 
1999. 

A December 2005 IME opinion obtained by VA stated that the 
examiner was unable to come to any conclusion regarding the 
treatment of the Veteran due to illegible records and 
insufficient documentation in the areas that were legible. 

An additional August 2006 IME opinion stated that the 
examiner had reviewed "about 4 inch sheets of medical 
records, laboratory reports, and testimonials and over two 
and a half hours were spent in the review and preparation of 
the statement."  The examiner summarized the Veteran's 
pertinent medical history and concluded that 

it is my professional opinion that the 
VA made proper diagnosis on the 
[Veteran's] problem and performed 
appropriate surgical debridement 
including irrigation and debridement 
with the bead pouch and a partial 
calcanectomy on the [V]eteran's heel.  
My opinion is based on the reasonable 
degree of medical certainty.

Although the VA acted in accordance to 
the standard medical and surgical 
practice as relates to the management of 
the diabetic foot, the [V]eteran had 
some issues that may be related to 
communication and trust and that may not 
have been addressed adequately but all 
in all, I think standard medical and 
surgical practice were applied to this 
gentleman.  Diabetic foot infections are 
serious medical problem[s] that 
requir[e] immediate medical attention, 
diagnostic evaluation, and 
hospitalization, and this was clearly 
done in the [V]eteran's case. . . . [A] 
deep [diabetic] infection may include an 
abscess and bone infection or 
osteomyelitis. The infection to the bone 
or osteomyelitis takes at least three 
weeks to show up on x-rays, so it is not 
unusual for the x-rays to be negative in 
patients with osteomyelitis. . . . 

The [Veteran's] second bone scan shows 
increased uptake which may be consistent 
with findings of osteomyelitis. . . . 

After reviewing [the] records, I do 
believe that the [Veteran] initially 
presented with an abscess of the right 
heel that developed into the more deeper 
infection of osteomyelitis. . . . 

I think the VA acted in a proper manner 
by removing a part of the calcaneus.  
Partial calcanectomy is a standard of 
care for infected calcaneal bone and I 
have performed this enormous times in my 
practice.  When bone is infected, it 
lacks blood supply to allow for adequate 
healing and failure to remove that bone 
leads to worsening of the infection. 

My opinions are based on a reasonable 
degree of medical certainty, based on 
the records submitted to me for review. 

While the evidence shows that the Veteran has current 
diagnoses of a right foot disorder, there is no evidence 
that it was the result of carelessness, negligence, lack of 
proper skill, error in judgment, or similar instance of 
fault by VA medical personnel.  The only medical evidence of 
record which discusses whether the Veteran's medical 
treatment was deficient in any manner is the August 2006 IME 
opinion.  This report stated that VA acted properly in its 
treatment of the Veteran.  

While the Veteran states that he did not consent to the 
calcanectomy during the April 1999 VA surgical procedure, he 
signed a consent form that specifically included permission 
for the performance "of such additional operations or 
procedures as are found to be necessary or desirable, in the 
judgment of the professional staff of the below-named 
medical facility, during the course of the above-named 
operation or procedure."  As the medical evidence of record 
showed that the calcanectomy was necessary or desirable 
under the circumstances of the operation, the Board has 
determined that it was covered by this consent form.

In the December 2012 Memorandum Decision, the Court set 
aside the Board's prior May 2011 decision for its failure to 
consider the Veteran's challenge as to whether he provided 
informed consent to the right foot/ankle debridement 
procedure and whether the signed consent form was more 
probative than the Veteran's assertions that he did not 
provide informed consent.  The Court noted the Board's 
conclusion that the generic consent form covered the removal 
of part of the Veteran's heel bone.  However, it highlighted 
that the Veteran had challenged what information the doctor 
provided to him about the ankle debridement procedure, that 
is, whether he gave informed consent.  It was noted that the 
Board must determine whether the consent form was more 
probative than the Veteran's allegation that he was not 
informed of a potential risk or outcome of surgery, namely 
the removal of part of the heel.  Based on the foregoing, 
the Board will now provide additional analysis as to whether 
the Veteran gave informed consent for the April 1999 VA 
surgical procedure with calcanectomy.

The Court has previously held that it cannot be presumed 
that a complication was not discussed simply because it was 
not recorded in a generic consent form.  Halcomb v. 
Shinseki, 23 Vet. App. 234 (2009).  However, the Court 
recently clarified that the presumption of regularity does 
not apply to the scope of the information provided to a 
patient by a doctor with regard to the risks involved with 
any particular treatment.  McNair v. Shinseki, 25 Vet. App. 
98, 104-05 (2011).  In other words, the presumption of 
regularity does not apply to generic informed consent forms, 
such as the one the Veteran signed prior to his April 1999 
VA surgery, where there is a dispute concerning what 
information a doctor provided to his patient.  Id. 

The Court in McNair found that when, as here, there is a 
dispute concerning what information a doctor provided to his 
patient, a factual issue is raised regarding whether a 
generic consent form indicating the patient was advised of 
the risks of surgery is more probative than the Veteran's 
lay statements that a specific risk of the surgery was not 
discussed.  The Board must weigh the Veteran's lay 
contentions, signed consent form, and all relevant evidence 
in the record in the first instance.  McNair, 25 Vet. App. 
at 104-05.  See also Salis v. United States, 522 F. Supp. 
989, 1000 (M.D.Pa. 1981) (noting that when there is a 
general consent form and contrary lay assertions, the issue 
becomes one of credibility for the trier of fact.) 

The Court found that this was a factual finding that must be 
made by the Board in the first instance based on all of the 
evidence in the record.  It further explained the failure to 
provide information to a patient about a potential adverse 
effect does not defeat a finding of informed consent if a 
reasonable person faced with similar circumstances would 
have proceeded with the treatment.  McNair, 25 Vet. App. at 
105-7.  If a reasonable person faced with similar 
circumstances would have proceeded with the treatment, then 
this is a minor, immaterial deviation from the informed 
consent requirements.  Id. at 107; see also 38 C.F.R. § 
17.32.  As noted above, VA regulations state that a minor, 
immaterial deviation from the requirements of 38 C.F.R. § 
17.32 will not defeat a finding of informed consent.  38 
C.F.R. § 3.361(d)(1)(ii). 

The Court found that this reasonableness test is a factual 
finding that the Board must make in the first instance; 
however, the Court provided factors for the Board to 
consider.  McNair, 25 Vet. App. at 107-8; see also Roberts 
v. Shinseki, 23 Vet. App. 416, 423 (2010).  The Court 
indicated that the adjudicator "not only must look to the 
likelihood of an undisclosed risk materializing, but also 
recognize that some foreseeable risks may be minor when 
compared to the foreseeable consequences of continuing 
without undergoing the treatment."  McNair, 25 Vet. App. at 
107-8; see also Smith v. Cotter, 107 Nev. 267, 810 P.2d 
1204, 1209 (1991) (determining that the plaintiff's thyroid 
problem was a minor irritant when compared to the risk of 
permanent vocal cord paralysis).  The Court also stated that 
the Board should consider the "consequences of proceeding 
with surgery versus foregoing surgery, which are key factors 
upon which one might evaluate whether a reasonable person 
would have proceeded with the surgery."  McNair, 25 Vet. 
App. at 107-8. 

In this case, the Board has determined that the consent form 
signed by the Veteran is more probative than his allegation 
that he was not informed of a potential risk or outcome of 
surgery, specifically the removal of part of the heel.  Even 
assuming arguendo that VA failed to provide information to 
the Veteran about that potential adverse effect of the April 
1999 surgical procedure, the Board has considered the 
consequences of proceeding with surgery versus foregoing 
surgery in evaluating whether a reasonable person would have 
proceeded with the surgery.  The Board finds that a 
reasonable person, with the Veteran's medical history, 
comorbid disorders, and persistent right foot infection, 
would have proceeded with the procedure rather than 
foregoing it.  Removal of part of the heel bone is 
considered a minor risk when faced with continued infection 
that could lead to loss of the entire right foot.  In the 
August 2006 IME opinion, the physician acknowledged that the 
Veteran had some issues that may be related to communication 
and trust and that may not have been addressed adequately.  
However, it was concluded that, all in all, standard medical 
and surgical practice were applied.  The physician then 
clearly discussed the gravity surrounding diabetic foot 
infections indicating that  

diabetic foot infections are serious 
medical problem[s] that requir[e] 
immediate medical attention, diagnostic 
evaluation, and hospitalization, and 
this was clearly done in the [V]eteran's 
case. . . .

After weighing the Veteran's lay contentions, his signed 
consent form, and all other relevant evidence in the record, 
to include the physician's August 2006 IME opinion, the 
Board has determined that a reasonable person faced with 
similar circumstances would have proceeded with the April 
1999 VA surgery.  Any failure to provide information to the 
Veteran about a potential adverse effect, here removal of 
part of the heel bone, is considered a minor, immaterial 
deviation from the informed consent requirements.  Id. at 
107-8; see also 38 C.F.R. § 17.32.  Based on the foregoing 
discussion, the Board concludes that informed consent was 
obtained from the Veteran for his April 1999 VA surgery. 

In addition, the medical evidence of record does not show 
that the Veteran experienced additional disability that was 
due to an event not reasonably foreseeable in furnishing his 
medical treatment.  The only medical evidence of record that 
comments on whether the Veteran's additional disability was 
reasonably foreseeable is the August 2006 IME opinion.  That 
opinion stated that the Veteran initially presented with an 
abscess of the right heel which later developed into a 
deeper infection.  The physician stated that it was "very 
easy" for abscess to spread to a deeper bony infection 
"within days to weeks" in the calcaneus as a result of the 
bone's inherent structure.  The physician also stated that 
such a spread of infection was heightened in diabetic 
patients who "are prone to having an infection."  The 
characterization of the infection as "very easy" is 
probative evidence that the spread of the abscess to a 
deeper infection of the calcaneus was reasonably 
foreseeable.  The further commentary on the ease with which 
such infections spread in diabetic patients is further 
probative evidence that the Veteran was particularly 
susceptible to such an occurrence.  Thus, the preponderance 
of the medical evidence of record demonstrates that it was 
reasonably foreseeable for the Veteran's right ankle abscess 
to result in an infection of the calcaneal bone. 

Furthermore, the physician stated that a "[p]artial 
calcanectomy is a standard of care for infected calcaneal 
bone and I have performed this [operation an] enormous 
[number of] times in my practice.  When bone is infected, it 
lacks blood supply to allow for adequate healing and failure 
to remove that bone leads to worsening of the infection."  
The term "standard of care" clearly indicates that such an 
operation is normal.  Accordingly, the preponderance of the 
medical evidence of record shows that the Veteran's partial 
calcanectomy was reasonably foreseeable once the Veteran's 
calcaneus became infected.  Finally, there is no medical 
evidence of record that states that the residuals from the 
Veteran's partial calcanectomy were not foreseeable prior to 
the operation.  The Veteran has not presented any medical 
evidence that demonstrates that any of his current right 
foot residuals were not reasonably foreseeable.  As such, 
the only medical evidence of record that addresses the 
foreseeability of the Veteran's residuals is the August 2006 
IME opinion which, as described above, regarded the sequence 
of events that occurred during the treatment in question as 
normal.  While the Veteran also claims that VA's treatment 
was insufficient in other ways, there is no medical evidence 
of record that provides an opinion that the Veteran's 
current right foot disorder was the result of carelessness, 
negligence, lack of proper skill, error in judgment, or 
similar instance of fault by VA medical personnel or that it 
was due to an event not reasonably foreseeable in furnishing 
the Veteran's medical treatment. 

The Veteran has also submitted numerous internet articles on 
surgical operations and anesthesia.  The Court has held that 
a medical article or treatise can provide support to a 
claim, but that they must be combined with an opinion of a 
medical professional and be reflective of the specific facts 
of a case as opposed to a discussion of generic 
relationships.  Sacks v. West, 11 Vet. App. 314, 316-17   
(1998); see Wallin v. West, 11 Vet. App. 509, 514 (1998) 
(medical treatise evidence discussed generic relationships 
with a degree of certainty to establish a plausible 
causality of nexus); see also Mattern v. West, 12 Vet. App. 
222, 228 (1999).  The articles of record do not discuss the 
specific circumstances of the Veteran's right foot disorder 
in any manner, let alone whether VA personnel were deficient 
in any way in their treatment of the Veteran.  In addition, 
these articles have never been commented on in any form by a 
medical professional.  As such, these articles are not 
competent to show that the Veteran experiences additional 
disability related to a right foot disorder as a result of 
carelessness, negligence, lack of proper skill, error in 
judgment, or similar instance of fault by VA medical 
personnel or that it was due to an event not reasonably 
foreseeable in furnishing the Veteran's VA medical 
treatment. 

The Veteran is capable of observing symptoms related to his 
right foot disability and the Board ultimately finds 
statements from the Veteran in this regard to be competent.  
See Davidson v. Shinseki, 581 F.3d. 1313, 1315 (Fed. Cir. 
2009).  Nevertheless, these statements are not competent 
evidence sufficient to establish that he experiences 
additional disability related to a right foot disorder as a 
result of carelessness, negligence, lack of proper skill, 
error in judgment, or similar instance of fault by VA 
medical personnel or that it was due to an event not 
reasonably foreseeable in furnishing the Veteran's VA 
medical treatment.  In some cases, lay evidence may be 
competent and probative evidence of etiology.  See Jandreau 
v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 
Davidson, 581 F.3d at 1315 (finding that, in certain 
circumstances, lay evidence may be competent to establish a 
medical etiology).  However, medical causation in this case 
involves questions beyond the range of common experience and 
common knowledge and requires the special knowledge and 
experience of a trained physician.  The cause of a right 
foot disability cannot be made by the Veteran as a lay 
person based on mere personal observation, i.e., perceived 
by visual observation or by any other of the senses.  A 
right foot disability is not a simple disorder that the 
Veteran or other lay persons are competent to identify.  
Therefore, the Veteran's assertions are not competent 
evidence to establish that he experiences additional 
disability related to a right foot disorder as a result of 
carelessness, negligence, lack of proper skill, error in 
judgment, or similar instance of fault by VA medical 
personnel or that it was due to an event not reasonably 
foreseeable in furnishing the Veteran's VA medical 
treatment.  38 C.F.R. § 3.159(a)(1) (2012) (competent 
medical evidence means evidence provided by a person who is 
qualified through education, training, or experience to 
offer medical diagnoses, statements, or opinions).

The medical evidence of record includes numerous VA medical 
reports in which the Veteran complained of negligent or 
otherwise deficient treatment by VA personnel.  However, 
these statements are not competent etiological evidence, as 
they are based entirely on the Veteran's own statements and 
do not include any independent commentary from the various 
examiners.  See Elkins v. Brown, 5 Vet. App. 474, 478 
(1993).  Such evidence cannot enjoy the presumption of 
truthfulness, because a medical professional is not 
competent to opine as to matters outside the scope of his or 
her expertise, and a bare transcription of a lay history is 
not transformed into "competent medical evidence" merely 
because the transcriber happens to be a medical 
professional.  See Layno v. Brown, 6 Vet. App. 465, 469 
(1994) ("in order for any testimony to be probative of any 
fact, the witness must be competent to testify as to the 
facts under consideration").  The Court has held that 
medical professionals are not competent to transform a lay 
history, unenhanced by medical comment, into competent 
medical evidence based on their status as medical 
professionals.  LeShore v. Brown, 8 Vet. App. 406 (1995). 

The criteria to establish entitlement to compensation under 
38 U.S.C.A. § 1151 for additional disability related to a 
right foot disorder have not been established, either 
through medical or probative lay evidence.  In arriving at 
the decision to deny the claim, the Board has considered the 
applicability of the benefit-of-the-doubt doctrine.  
However, as the preponderance of the evidence is against the 
claim of entitlement to compensation under 38 U.S.C.A. § 
1151 for additional disability related to a right foot 
disorder that doctrine is not applicable.  38 U.S.C.A. 
§ 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. 
App. 49, 53-56 (1990).  


ORDER

Compensation under 38 U.S.C.A. § 1151 for additional 
disability related to a right foot disorder is denied. 



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs