Citation Nr: 1332071 Decision Date: 10/04/13 Archive Date: 10/21/13 DOCKET NO. 09-31 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 2002) for above-the-knee bilateral amputations due to VA treatment in September and October 2006. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from May 1974 to May 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) in October 2010. In July 2012, the Veteran was notified that the VLJ who conducted the October 2010 hearing was no longer employed at the Board. She was afforded an opportunity for a new hearing in a July 2012 letter. See 38 U.S.C.A. § 7107(West 2002), 38 C.F.R. § 20.707 (2013). The Veteran requested a new hearing and testified before the undersigned VLJ at the Boston RO in September 2012. Transcripts of both hearings are of record. The case was previously before the Board in March 2011, August 2012, and November 2012 when it was remanded for additional development. It has now returned to the Board for further appellate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). FINDING OF FACT The Veteran did not incur any additional disability, to include bilateral above-the-knee amputations, due to VA treatment in September and October 2006. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for above-the-knee bilateral amputations due to VA treatment in September and October have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. §§ 3.361, 3.362, 17.32 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that compensation is warranted under 38 U.S.C.A. § 1151 (West 2002) for an additional disability incurred as a result of treatment performed at a VA facility. The Veteran has alleged several instances of fault on the part of VA that resulted in bilateral above-the-knee amputations. First, the Veteran contends that a failure on the part of VA to prescribe antiembolic boots and medication after a September hospitalization led to arterial embolisms in the legs and above-the-knee amputations. The Veteran also contends that similar treatment was denied when she reported to the emergency room (ER) of the West Roxbury VA Medical Center (VAMC) on September 29, 2006. She testified in October 2010 and September 2012 that she was found to have an elevated white blood cell count, but was sent home and told to continue her medications despite her complaints of lethargy and overall sickness. Finally, the Veteran contends that VA negligently prescribed steroids in September 2006 to treat a flare of ulcerative colitis which led to lower extremity thrombosis and leg amputations. The Veteran was admitted to the West Roxbury VAMC on September 8, 2006 for treatment of an ulcerative colitis flare. Her symptoms gradually improved with a course of steroids, though she experienced some lower extremity edema (right worse than left) likely secondary to the steroid use. She was discharged on September 18, 2006 with a tapering course of steroids. The Veteran contends that she was seen a week later, on September 29, 2006, at the West Roxbury ER with complaints of lethargy and feeling unwell. She presented with an elevated white blood cell count, but was not admitted to the hospital and was told to return home and continue taking her medication. The Board notes that there is no record of this ER visit in any of the Veteran's VA treatment records. Clinical records associated with all her subsequent hospitalizations only reference the previous admission from September 8, 2006 to September 18, 2006. Furthermore, a VA health summary containing a list of all the Veteran's visits and scheduled appointments at the VAMC only notes a women's psychiatric appointment scheduled on September 25, 2006 and information from the gastrointestinal (GI) clinic on September 28, 2006. Treatment records associated with these appointments shows that the Veteran was a no show at the psychiatric clinic on September 25, 2006 and received information pertaining to a future colonoscopy on September 28, 2006. There is no indication that the Veteran was seen at any VA facility on September 29, 2006. On October 1, 2006, the Veteran reported to the West Roxbury VAMC with complaints of a sudden onset of bilateral lower extremity pain and weakness with decreased sensation and motor strength. A CT of the lower extremities demonstrated thrombosis of the right and left arteries and she was taken to the operating room for a thrombectomy and four compartment bilateral fasciotomies. Despite the surgeries, the Veteran's physicians found that she required bilateral above-the-knee amputations due to extensive necrosis of the legs. She was placed on a ventilator and her sister consented to the surgery to perform the leg amputations on October 5, 2006. No clear etiology was identified to account for the Veteran's spontaneous thrombosis of the lower extremities; she was provided consultations with hematology and rheumatology who suspected an anticoagulability state and/or vasculitis, and laboratory tests and antibody panels were still pending at the time of the Veteran's discharge. She also continued to experience a flare of ulcerative colitis throughout her hospitalization that was characterized as refractory to steroids. The Veteran was discharged from the West Roxbury VAMC on October 31, 2006 to the Brockton VAMC for rehabilitation and treatment of her amputations. The Veteran was hospitalized on several more occasions for complications following her amputations, including anemia and bilateral iliac vein deep vein thrombosis (DVT) in November 2006, DVT in the left arm in December 2006, and an infection in February 2007. During the February 2007 hospitalization, she manifested a fever and elevated white blood cell count and was diagnosed with an acute infection. Her physician diagnosed a hypercoagulable state and concluded that the Veteran had "clearly declared herself" to have a hypercoagulation disorder given the multiple episodes of DVT and arterial thromboembolism. The Veteran would require lifelong anticoagulation treatment and there was no need for any further hypercoagulation workup. When a Veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.361. Under 38 U.S.C.A. § 1151, it is necessary to show that disability or death was the result of carelessness, negligence, lack of proper skill, error in judgment, similar instance of fault, or an event not reasonably foreseeable. 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. 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). As a preliminary matter, the Board notes that while the complete consent form from the Veteran's October 5, 2006 above-the-knee amputation surgery is not of record, the evidence does not establish that VA furnished treatment without the informed consent of the Veteran. The Veteran and her representative conceded during the October 2010 videoconference hearing that her medical proxy (the Veteran's sister) signed a consent form and the possibility and necessity of amputation in the Veteran's case was discussed at length. The record contains the scanned document of the surgical consent which notes informed consent was given at 2:31pm on October 5, 2006. Although the scanned document does not contain the Veteran's sister's signature, it does include a discussion of the risks and complications associated with the surgery and notes that the Veteran lacked decision-making capacity. The Board therefore finds that VA had the informed consent of the Veteran's medical proxy prior to the October 5, 2006 surgery. The provisions of 38 C.F.R. § 17.32 have been complied with and any deviation from these requirements in this case does not defeat the finding of informed consent. After review of the evidence, the Board finds that the Veteran did not incur any additional disability due to VA treatment at the West Roxbury VAMC in September and October 2006. The record clearly establishes that the Veteran's bilateral femoral arterial thrombosis required above-the-knee-amputations, but the weight of the competent evidence is against a finding that the amputations were the result of any VA treatment (or failure to treat) the Veteran. Treatment records associated with the Veteran's October 2006 hospitalization note that the exact etiology of her arterial thrombosis was unclear; hematology and rheumatology consultations did not disclose a clear basis for the spontaneous thrombosis, though a hypercoagulative state and vasculitis were suspected. It was only several months later, during a subsequent February 2007 admission to the VA hospital, that the Veteran's physician found that the Veteran clearly had a hypercoagulation disorder given her multiple episodes of DVT and arterial thromboembolism. Thus, VA records establish that the Veteran's spontaneous femoral arterial thrombosis resulting in above-the-knee amputations was due to a hypercoagulation disorder and not the result of any treatment rendered by VA in connection with her October 2006 admission. The Veteran also contends that her leg amputations were due to VA treatment during a September 2006 hospitalization and lack of treatment during an ER visit on September 29, 2006. VA records associated with the Veteran's admission to the West Roxbury VAMC show that she was treated with steroids for a severe flare of ulcerative colitis. Although the steroids resulted in some edema of the lower extremities, there is no evidence that the Veteran experienced pain, loss of sensation, weakness, or other indications of lower extremity thrombosis. During an October 2006 rheumatology consultation, the Veteran also denied any prior symptoms, constitutional or otherwise, similar to those that initiated her admission on October 1, 2006 for thrombosis. To the extent the Veteran contends that she was seen at the West Roxbury VAMC ER on September 29, 2006, as discussed above, there is simply no record that this visit ever occurred. It is not listed in her VA health summary report and there is no reference to an ER visit on this date in any of the Veteran's subsequent treatment records, either by the Veteran's healthcare providers or by herself. The Veteran was seen at the West Roxbury VAMC in February 2007 with symptoms of a fever and elevated white blood cell count; at that time she was diagnosed with an infection from her amputation wounds. Given the lack of any documentation regarding an ER visit on September 29, 2006 and the similar symptoms reported during a subsequent visit several months later, the Board finds that the medical evidence does not establish that VA failed to offer treatment to the Veteran on September 29, 2006. The record also contains several VA medical opinions weighing against the claim. VA examiners who reviewed the claims file in September 2008, July 2011, and February 2013 concluded that the Veteran's leg amputations were not the result of any treatment (or lack thereof) furnished by the VA. The examiners found that the Veteran received excellent medical care according to all accepted medical procedures. The VA examiner who issued the July 2011 and February 2013 opinions also found that the Veteran's treatment with steroids, lack of prescription for venodyne boots, and any infectious process were not the cause of her arterial emboli in the lower extremities. There was no credible scientific evidence linking any of the Veteran's medications to arterial embolism and no credible way to link the Veteran's bilateral amputations to her VA treatment or lack of treatment. A VA expert who reviewed the claims file June 2013 also noted that even if the VA had been aware of the Veteran's hypercoagulative state in addition to her ulcerative colitis in 2006, the prescribed treatment would not have differed as the appropriate treatment method is anti-coagulation therapy and surgery. Thus, the medical opinions of the VA examiners and expert establish that the Veteran's above-the-knee amputations were not due to any treatment or lack thereof rendered by VA. The Board has considered the testimony of the Veteran linking her leg amputations to VA's treatment and alleged failure to provide treatment in September and October 2006. Personnel records indicate that the Veteran served as a medical specialist during active duty service with post-service work as a X-ray technician. She therefore has some medical knowledge and the Board finds that she is competent to offer a medical opinion in this case. However, her opinion is clearly outweighed by the medical opinions rendered by the VA examiners and VA expert in September 2008, July 2011, February 2013 and June 2013, as well as the contemporaneous conclusions and findings of her treating health care providers at the West Roxbury and Brockton VAMCs. The competent medical evidence of record therefore establishes that the Veteran did not incur any additional disability due to VA treatment in September and October 2006. As the Veteran did not incur an additional disability as a result of VA treatment during the period from September 2006 to October 2006, the claim for compensation under 38 U.S.C.A. § 1151 must be denied. 38 U.S.C.A. § 5107(b) (West 2002). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) was furnished to the Veteran in an April 2008 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in a June 2009 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be given before an initial AOJ decision is issued on a claim. Pelegrini II, 18 Vet. App. at 119-120. While complete VCAA notice was provided after the initial adjudication of the claim, this timing deficiency was remedied by the issuance of VCAA notice followed by readjudication of the claim. Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006). The claim was readjudicated in the March 2013 SSOC. Therefore, any timing deficiency has been remedied. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records, records of VA treatment, and records from the Social Security Administration (SSA). The Veteran has not reported undergoing any private treatment for the disability on appeal. Additionally, VA obtained proper medical opinions in response to the Veteran's claim in September 2008, July 2011, February 2013, and June 2013. The Board also finds that VA has complied with the remand orders of the Board. In response to the Board's remands, the Veteran's complete records from the SSA and Boston VA health care system (including records from the West Roxbury and Brockton VAMCs) pertaining to the relevant claims period were obtained and added to the record. Although VA was unable to obtain a copy of the October 5, 2006 consent form signed by the Veteran's sister, the record contains a "scanned document" version of the form which notes the exact time and date that the form was signed and the scope of the consent obtained. The Veteran was also contacted in a December 2012 letter and asked to identify any other evidence that might support her claim, and to submit it if such evidence was in her possession. VA also obtained medical opinions from VA examiners and a VA expert in response to the Board's remands. The case was then readjudicated in a March 2013 supplemental statement of the case (SSOC). Therefore, VA has complied with the remand orders of the Board. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 2002) for above-the-knee bilateral amputations due to VA treatment in September and October 2006 is denied. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs