Citation Nr: 1400011 Decision Date: 01/02/14 Archive Date: 01/16/14 DOCKET NO. 10-34 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2002) for neurogenic bowel and bladder, spinal cord disability, vascular disease, erectile dysfunction, paralysis of the lower extremities, bilateral amputation of the feet and sacral ulcers, claimed as due to Department of Veterans Affairs (VA) treatment beginning in September 2005. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and Y. L., M.D. ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1971 to December 1972. These matters are before the Board of Veterans' Appeals (Board) on appeal from February 2008 and March 2009 rating decisions of the Chicago, Illinois, VA Regional Office (RO). In September 2012 a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the record. The issue of service connection for amputation of the feet is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. FINDINGS OF FACT 1. The Veteran's vascular disease is not shown to have been permanently increased in severity by VA treatment beginning on September 13, 2005. 2. The Veteran's neurogenic bowel/bladder, spinal cord disorder, erectile dysfunction, paralysis of the lower extremities, and sacral area ulcers resulted from, but were not reasonably foreseeable consequences of, his VA treatment beginning on September 13, 2005. CONCLUSIONS OF LAW 1. Compensation under 38 U.S.C.A. § 1151 for vascular disease, claimed as due to VA treatment beginning on September 13, 2005, is not warranted. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. § 3.361 (2013). 2. Compensation under 38 U.S.C.A. § 1151 is warranted for neurogenic bowel/bladder, spinal cord disorder, erectile dysfunction, paralysis of the lower extremities, and sacral area ulcers. 38 U.S.C.A. §§ 1151, 5107 (West 2002); 38 C.F.R. § 3.361 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The VCAA, in part, 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, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the claims for service connection and for compensation under 38 U.S.C.A. § 1151. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The appellant was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of his claims. Letters dated in December 2006 and December 2008 explained the evidence VA was responsible for providing and the evidence the Veteran was responsible for providing, and advised him of what is needed to substantiate a claim under 38 U.S.C.A. § 1151; they also informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. At the hearing before the undersigned the Veteran was advised of what evidence was needed to substantiate his claim (essentially evidence of VA fault, or that additional disability was due to an unforeseen event). Questions were posed to the Veteran and his accompanying expert witness to elicit testimony addressing that element of the claim. The Veteran's pertinent VA treatment records have been secured. A VA medical opinion has been obtained, and the Veteran and a VA physician testified at a hearing before the undersigned. He has not identified any pertinet evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background and Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by 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. For claims filed on or after October 1, 1997, as in this case, the veteran must show that the VA treatment in question resulted in additional disability and that the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of additional disability was a event which was not reasonably foreseeable. See VAOPGCPREC 40-97; 38 U.S.C.A. § 1151. To determine whether additional disability exists, VA compares the veteran's physical condition immediately prior to the beginning of medical or surgical treatment to the veteran's physical condition after such care has ceased. 38 C.F.R. § 3.361(b). To establish actual causation, the evidence must show that the hospital care, medical or surgical 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. 38 C.F.R. § 3.361(c). To establish that fault on the part of VA caused the additional disability, it must be shown that VA hospital care, medical or surgical treatment, or examination caused the veteran's additional disability and that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or 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. 38 C.F.R. § 3.361(d). 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. See 38 C.F.R. § 3.361(d)(2). VA medical records show the Veteran was seen on September 13, 2005 for complaints of right lower extremity numbness, acute in onset, which awoke him from sleep approximately five days earlier. He described numbness as circumferential beginning at the knee and extending to the foot. He complained of claudication symptoms which were also new in onset over the past week. An aortogram and right lower extremity angiogram were completed the following day. It was noted the Veteran had significant iliac occlusion. An infusion catheter was placed for thrombolytic therapy. The radiology note stated there was a long segment occlusion of the right common and external iliac artery. The occluded segment was crossed with a wire and right leg runoff was done. An aortobifemoral bypass and bilateral lower extremity angiography were done on September 15, 2005. It was noted the Veteran was counseled regarding the operative and nonoperative treatment strategies, and the risks and benefits of each were discussed. The endovascular approach involved thrombolysis of the right iliac artery and placement of several stents. The catheter was advanced as the clots had migrated distally and this had to be chased with further thrombolysis. About one hour after the procedure, the Veteran became hemodynamically unstable and he was emergently taken back and covered stents were placed as extravasation was noted from the common external iliac. He was then taken back for further resuscitation. At this point, he was intubated. Over the next two to four hours, the Veteran started to decline in terms of hemodynamic stability. The abdominal distension increased and it became difficult to manage his cardiac parameters. During the surgery, a retroperitoneal hematoma was noted. No active bleeding was reported. It was assumed the bleeding had ceased and the Veteran had a combination of abdominal compartment syndrome from the retroperitoneal hematoma, as well as edematous bowel. It was further noted the left femoral system was heavily calcified and diseased. The right was supple and appeared to be disease free. On September 16, 2005 it was noted that the Veteran was not moving his legs after the bypass the previous day. There was no response to sharp sensation anywhere. A renal consultation the next day noted the Veteran had an iliac rupture prior to the procedure on September 15, 2005. He underwent an exploratory laparotomy on September 17, 2005. There were small serosal hematomas at the cecum, transverse colon and sigmoid. There was a small area of ischemic proximal rectum. The next day, a Hartmann's procedure was performed. It was noted the entire rectum was necrotic, and a colostomy was done. On September 29, 2005, a bilateral below-the-knee amputation was performed. It was noted the Veteran had developed emboli down both legs with dry gangrene on both legs, compromised by respiratory failure and sepsis. He underwent debridement of a sacral ulcer in decision 2005, and revision of the bilateral below-the-knee amputation in March 2006. The Veteran's claims folder was reviewed by a VA physician who summarized the pertinent history. The physician noted the Veteran entered with a history of claudication and an ischemic event involving the lower extremity. He was placed on systemic anticoagulation with medication. He also received anti-thrombolytic therapy. His immediate hospital course was complicated by an iliac artery rupture and he underwent balloon tamponade. A retroperitoneal hematoma was present as a sequela of the rupture. He then underwent an aortobifemoral bypass. The postoperative period, as a result of the hemorrhagic shock, was associated with an acute tubular nephrosis, respiratory failure and ischemic bowel secondary to the loss of blood supply, necessitating colostomy. A further complication was decubitus ulcer. The physician opined it was less likely than not that the condition was caused or became worse as a result of VA treatment. He stated the catastrophic events following the underlying condition culminated in the many medical problems that were encountered. He concluded that nowhere in the record could it be documented that additional disability resulted from carelessness, neglect, lack of proper skill, error in judgment or similar instance of fault on the part of the VA, or was the result of an event that could not reasonable have been foreseen or anticipated by a competent and prudent health care provider. He added it was not demonstrated that the VA failed to timely diagnose and treat the claimed disease and disability. In September 2012, Dr. L., a VA physician, provided a statement and testimony regarding the Veteran's treatment. She stated that from 1989 to 2008, she was the Spinal Cord Injury Service Rehabilitation Director at a VA facility. She related she was informally consulted on the Veteran's case in March 2006. At that time, the Veteran was hemodynamically stable, but continued to have large wounds on the sacrum, anterior abdomen, unhealed lower extremity amputation sites, a urethro-cutaneous fistula of the penis, a colostomy and recurrent urinary tract infections. She stated that given the types of surgeries the Veteran had, one would expect the primary complications related to circulation, breathing, heart and kidney function would be most evident within the first 24 to 72 hours postoperative (from the iliac rupture). This was borne out in the record from September 15 to September 18. The clinical notes all demonstrate loss of movement of the lower extremities and some loss of sensation. These observations were made prior to the Veteran being sedated for ventilatory management. She further noted infection might become evident around 72 hours, and decreased circulation or organ function related to overwhelming infection would be identifiable at about 96 hours or slightly beyond. She stated the skin lesions on the sacrum were noted on the seventh day of hospitalization. Dr. L. also noted the Veteran's symptoms of spinal cord dysfunction are an uncommon [emphasis added], but not entirely unknown complication of surgical repair of key arteries. The scenario was highly likely to have compromised the blood supply to the spinal cord. Neural tissues are particularly susceptible to injury from low to no circulation of blood, and the motor tracts (governing lower extremity movement and bladder/rectum function) lie closest to where the arterial system interfaces with the spinal cord. In addition, because of the hypotensive circumstances, necrosis of the bowel began to take hold at the rectum level, which resulted in the removal of these tissues (Hartmann's procedure), adding to the impairments. Finally, Dr. L. opined that paraplegia, accompanied by neurogenic bowel/bladder, removal of specific areas of ischemic bowel, necessitating placement of a colostomy, loss of sensation and movement below the level of the apparent spinal lesion, and the development of a massive sacral pressure sore are not typical consequences of treatment for the type of vascular disorder the Veteran had upon hospital admission. At the September 2012 hearing before the undersigned, Dr. L. testified that the general drop in the Veteran's blood pressure, which was profound, was "the most likely cause of his current level of immobility and loss of sensation...[i]t's not a common complication of this kind of surgery." She continued that it was a very remote complication. She explained that when vascular surgeries caused such complications, it was when the patient had a weakening of the main vessel in the body, but not when there was a blockage in the leg itself. Dr. L. added that the scenario that tends to lead most frequently to a spinal cord stroke is very different from the situation in this case. Usually, the occlusion of a small vessel would not have led to these kinds of findings. She also noted that the Veteran's losing both of his lower limbs was an unexpected and pretty profound finding. It is clearly shown, and not in dispute, that the Veteran has additional disability following his VA treatment beginning in September, 2005. He does not argue, nor does the evidence suggest, that any additional disability is due to carelessness, negligence, lack of proper skill, error in judgment or other instance of fault on the part of the VA. Rather, this case turns on whether the additional disability was due to an event that was not reasonably foreseeable. Notably, the February 2008 VA physician's opinion in this matter addressed VA fault only (and did not adequately address forseeability of the adverse consequences of the treatment or whether the Veteran would have received notice that expected consequences of the treatment to be provided included what ultimately occurred). The VA physician who furnished both a statement and testimony on the Veteran's behalf found, in essence, that the additional disabilities (that are at issue) were rare, and not reasonably foreseeable, complications of the treatment provided. Her thorough explanation of the procedures that were done and the sequence of events that occurred following the treatment (and their significance), as well as what is normally expected with the procedures done (and what is not) is probative evidence that supports the Veteran's claims. She testified, in essence, that the complications he would have been informed of when providing consent to the treatment would have included bleeding, infection and short term pain (but not all the dire consequences that followed). The Board finds no reason to question the competence of this VA expert, or to question the validity of her opinions. Because her statements and testimony constitute the best description in the record (by a medical provider) of what transpired (and its significance), because she expressed such thorough familiarity with the record; because of her acknowledged expertise in this matter, and because she thoroughly explained what would have been expected consequences of the VA treatment (and what were not), her opinion persuades the Board to find, with resolution of reasonable doubt in the Veteran's favor, that the additional neurogenic bowel/bladder, spinal cord, erectile dysfunction, paralysis of the legs, and sacral ulcers disabilities of the Veteran were not reasonably foreseeable consequences of the treatment provided, and that entitlement to compensation for such disabilities under 38 U.S.C.A. § 1151 is warranted. Regarding the claim for compensation for vascular disease under 38 U.S.C.A. § 1151, the record establishes the Veteran sought treatment for such disability in September 2005. There is no clinical evidence in the record that the underlying pathology of the disability increased as a result of VA treatment. The Board concludes, accordingly, that compensation for vascular disease under 38 U.S.C.A. § 1151 is not warranted. ORDER Compensation under 38 U.S.C.A. § 1151 for vascular disease, claimed as due to VA treatment beginning on September 13, 2005, is denied. Compensation under 38 U.S.C.A. § 1151 for neurogenic bowel/bladder, spinal cord disorder, erectile dysfunction, paralysis of the lower extremities, and sacral area ulcers is granted. REMAND The Veteran also seeks compensation under 38 U.S.C.A. § 1151 for amputations of his feet. As is noted above, in September 2005 he sought VA treatment for complaints associated with vascular disease. In September 2005 he underwent bilateral below-the-knee amputations, with revision in March 2006. At the hearing before the undersigned in September 2012, Dr. L. testified that the amputation of the feet was "made more imminent by the rupture, the loss of capacity to carry blood." It is not clear whether this was related to the underlying vascular disease or the treatment the Veteran received for it (and its complications). Accordingly, the case is REMANDED for the following action: 1. The RO should arrange for the Veteran's entire record to be forwarded to a vascular surgeon for review and an advisory medical opinion as to whether the Veteran's amputation of the feet was (a) more likely due to his underlying vascular disease or (b) at least as likely as not (a 50 percent or higher probability) due to the VA treatment he received (and its complications). The consulting provider should be advised that entitlement to compensation under 38 U.S.C.A. § 1151 is established for neurogenic bowel/bladder, a spinal cord disability, erectile dysfunction, paralysis of the lower extremities and sacral ulcers. The consulting provider must explain the rationale for the opinion, with citation to factual data, as deemed appropriate. 2. The RO should then review the record and readjudicate the matter remaining on appeal. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative opportunity to respond. The case should then be returned to the Board, if in order, for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs