Citation Nr: 1624073 Decision Date: 06/15/16 Archive Date: 06/29/16 DOCKET NO. 13-22 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to compensation under 38 U.S.C. § 1151 for amputation of the left 2nd and 3rd toes due to gangrene and left below the knee amputation due to vascular compromise. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from October 1952 to September 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2012 decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied entitlement to compensation under 38 U.S.C. § 1151 for amputation of the left 2nd and 3rd toes due to gangrene and left below the knee amputation due to vascular compromise. In December 2015, the Veteran and his wife testified at a Board hearing before the undersigned via video conference from the RO. In January 2016, the Board remanded this matter. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The most probative evidence establishes that the Veteran's left lower extremity amputations were not caused by VA treatment in November 2010 or by failure to diagnose with regard to gangrene. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for amputation of the left 2nd and 3rd toes due to gangrene and left below the knee amputation due to vascular compromise are not met. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. §§ 3.102, 3.361 (2013); VAOGCPREC 05-01 (February 5, 2001). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. Here, the Veteran was provided with the relevant notice and information in an October 2011 letter prior to the initial adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). The Veteran has not alleged any notice deficiency during the adjudication of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. In this case, there are no service treatment records (STRs) available for review as they had been destroyed by fire. The National Personnel Records Center (NPRC) has also indicated that a search of sick/morning reports for the Veteran's unit did not yield records. However, this case does not involve service connection, but is rather a claim under 38 U.S.C.A. § 1151. The records that are pertinent have been obtained and associated with the record. The Veteran was also provided with a VA examination and medical opinions have been obtained. In particular, the March 2016 opinion contains a description of the relevant history; documents and considers the relevant medical facts and principles; and provides an opinion regarding the matter under appeal. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that the Veteran's spouse submitted a statement after the supplemental statement of the case (SSOC) was issued, but it duplicates testimony of record, including the testimony she provided at the Board hearing. Finally, the Veteran testified at a Board hearing. The hearing was adequate as the Veterans Law Judge who conducted the hearing explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). In summary, the Board finds that it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence should be submitted to substantiate the claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran). Claim under 38 U.S.C.A. § 1151 The Veteran claims that he suffered a permanent or chronic disability as a result of surgery and/or treatment and/or a lack of treatment at the VA Medical Center in Salisbury, North Carolina. It is maintained that the VA facility treated the Veteran's left foot for gout on November 1, 2010 and again on November 22, 2010. The foot continued to hurt and began to turn black. The Salisbury VA Medical Center diagnosed the condition as gangrene on November 29, 2010 and sent the Veteran to Wake Forest Baptist Hospital on November 30, 2010 for treatment and amputation. It is asserted that because the Salisbury VA medical center misdiagnosed the gangrene, the Veteran's condition worsened and resulted in amputation of the left leg up to the knee. The private facility's records show that the Veteran's foot problems had been in existence for two months, so the Veteran asserts that VA should have taken care of his foot issues before amputation was necessary. The record shows that the Veteran was receiving foot treatment for a skin disorder, but it was noted that he had a history of gout. In November 2010, the Veteran reported having pain and problems walking. He was diagnosed with gout and furuncle and he was given antibiotic medication. However, the Veteran reported back to VA and was diagnosed with cellulitis. The Veteran was given antibiotics. The Veteran later returned again to VA with complaints of pain and gangrene was suspected. The Veteran was then transferred to Wake Forest Baptist Hospital the same day where he underwent amputation of the left second and third toe. He eventually underwent a left below-knee amputation. VA eventually performed an above the knee amputation (AKA) in January 2011. Compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility. In addition, the proximate cause of the disability or death must be either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C.A. § 1151. Pursuant to 38 U.S.C. § 1151, entitlement to benefits based on the failure to diagnose a preexisting condition requires a determination that: (1) VA failed to diagnose or treat a preexisting disease or injury; (2) a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment; and (3) the Veteran suffered a disability that probably would have been avoided if the proper diagnosis and treatment had been rendered. Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished 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(c)(2). An additional disability or death caused by the Veteran's failure to follow medical instructions will not be deemed to be caused by hospital care, medical or surgical treatment or examination. 38 C.F.R. § 3.361(c)(3). In a claim based on an alleged failure to diagnose, "a claimant cannot demonstrate an injury unless it is shown that VA should have diagnosed the condition in question. Upon successfully demonstrating an injury or aggravation, a claimant must then prove that the injury or aggravation, that is, the failure to diagnose, resulted in additional disability or death." Roberson v. Shinseki, 22 Vet. App. 358, 363 (2009) aff'd Roberson v. Shinseki, 607 F.3d 809 (2010). In other words, in order to prove a claim under 38 U.S.C.A. § 1151 for failure to diagnose, the evidence must show the three elements set forth in the preceding paragraph. See Roberson v. Shinseki, 607 F.3d 809, 817 (2010)(upholding the General Counsel's elements of a claim based on a failure to treat); VAOPGCPREC 05-01; see also 38 C.F.R. § 19.5 (stating that the Board is bound by precedent opinions of the VA's General Counsel). While this aforementioned requirement create a de-facto "fault" element to claims filed prior to October 1, 1997, the Court notes that such is inevitable, as a claim for an act of omission fault and causation is inextricably intertwined. Id. at 364-65. Without such interpretation, pre-October 1997 claims would lead to absurd results allowing Veterans to recover claims for liver disease after a knee surgery because the orthopedic surgeon failed to diagnose any and all other maladies the Veteran may suffer from; such would not be a reasonable interpretation of VA law. Id. Therefore, in this case, first, there must be evidence of additional disability, as shown by comparing the Veteran's condition before and after the VA medical care in question. 38 C.F.R. § 3.361(b). To determine whether a veteran has an additional disability, 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 (CWT) program upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each body part or system separately. The additional disability must not be the result of the veteran's willful misconduct. 38 U.S.C.A. § 1151(a). Second, the additional disability must be caused by hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program furnished the veteran by VA. 38 C.F.R. § 3.361(c). In order for additional disability to be compensable under 38 U.S.C.A. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. 38 C.F.R. § 3.361(c)(1). Merely showing that a veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. Id. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease of injury for which the care or treatment was furnished 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(c)(2). Moreover, additional disability 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). Third, the proximate cause of the disability, as opposed to a remote contributing cause, must be 1) 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 2) an event that was not reasonably foreseeable. 38 U.S.C.A. § 1151(a)(1); 38 C.F.R. § 3.361(d). With regard to carelessness or negligence, 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 was the proximate cause of a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. Determinations of whether there was informed consent involve consideration of whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(1). With regard to reasonable foreseeability, 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 foreseen or disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. See 38 C.F.R. § 3.361(d)(2); Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). Thus, section 1151 contains two causation elements, a veteran's disability must not only be "caused by" the hospital care or medical treatment he received from VA, but also must be "proximately caused" by the VA's "fault" or an unforeseen event. 38 U.S.C.A. § 1151(a)(1). In November 2011, a VA opinion was provided. The examiner stated that after review of the Veteran's claim, there is no evidence that his disability is a result of the care he was given at the Salisbury VA Medical Center. The examiner reasoned that the Veteran is a diabetic with end stage kidney disease, peripheral vascular disease, hyperlipidemia, hypotension along with chronic tobacco use and had been followed by the podiatry clinic sporadically for routine care. The examiner stated that the Veteran's claim that the Salisbury VA misdiagnosed his gangrene was contrary to what his records indicated. The examiner stated that on November 30, 2010, the Veteran was seen in the emergency room department by Dr W. who properly assessed him and properly diagnosed his acute condition. The Veteran was then then transferred to Wake Forest Baptist Hospital for vascular intervention in an attempt to salvage the left foot. Unfortunately, the Veteran required a lower limb amputation to save his life. It was the examiner's professional opinion that it is more likely than not that the Veteran's acute ischemic left foot leading to a below the knee amputation is a direct result of his progressive peripheral vascular disease compounded by his co-morbidities and chronic tobacco use. At the December 2015 Board hearing, it was maintained that the Veteran is not in fact diabetic so the examiner was in error in that regard, and that VA had been treating the Veteran's left feet and failed to make the proper diagnosis in a prompt manner. Due to the error in the opinion, the Board obtained a new VA opinion. In March 2016, a VA examiner indicated that based on a review of the relevant evidence of record and especially the medical records dated from October to November 2010, VA did not fail to diagnose or treat a preexisting condition that ultimately resulted in the Veteran's left lower extremity amputations of the left 2nd and 3rd toes due to gangrene and a left below the knee amputation. The examiner noted that the Veteran was being followed by a podiatrist for onychomycosis. He also had a past medical history of gout. The Veteran had documentation of a regular appointment with a podiatrist on Nov 8th (2010), when it was documented "pulses palpable bilaterally," no evidence of inflammation/infection in left foot. The Veteran called November 16th (2010) with symptoms of pain and redness, the Veteran could barely walk, and he was given an appointment the same day. The Veteran was seen by a physician, who diagnosed gout and furuncle, due to evidence of a 2 centimeter "'boil" with redness and swelling in the dorsum of the foot. The physician indicated antibiotics and warm compresses. There was no fever, no systemic symptoms. However, the Veteran left without the antibiotics, and later his wife called on November 22nd (2010) and said he did not receive them by mail. The next day, the Veteran visited the emergency department and the diagnostic impression was cellulitis. The Veteran was offered admission, but he refused, choosing intravenous (IV) antibiotic one time and continued oral antibiotics by mouth at home. X-rays were done which did not show erosions or osteomyelitis. The Veteran went home. The emergency department physician called the Veteran to confirm he was taking antibiotics and a message was left. On November 26th (2010), there was documentation of a phone conversation with the Veteran's wife who said the Veteran was taking the antibiotics, but still complained of pain and Vicodin was sent. On Nov 30th (2010) the Veteran came back to the emergency department for persistent pain in left foot. By examination, gangrene was suspected. The on-call physician at VA EC documented that he planned on speaking with Orthopedics for the diagnosis of gangrene of the toes. The physician from Orthopedics felt that the Veteran did not need emergency transfer for evaluation that night and offered a clinic appointment, but the emergency department physician felt that the Veteran should be seen on an emergent basis. After several denied attempts to transfer the Veteran in the system, he was finally approved for transfer to Wake Forest Baptist Hospital the same day. At that hospital, he underwent, on December 1, 2010, open amputation of left second and third toe; on December 3, 2010, a left lower extremity arteriography; on December 10, 2010 a thrombectomy of the left profunda femoris and superficial femoral and popliteal arteries, left below-knee amputation. The Veteran continued deteriorating, and finally underwent an above the knee amputation (AKA) in January 2011 at VA. The examiner opined that although it had been an unfortunate series of events, the Veteran was cared for with the standard of care needed, and there was not negligence, fault, or lack of skills. The examiner indicated that the Veteran has gout, which presents also as pain and redness. When an infectious process was diagnosed, antibiotics were started. Even after antibioticotherapy, X-rays of the left foot read, "Most likely the patient has gout. Less likely osteoarthritis. Correlate with uric acid level. No infection is suspected. Moderate hallux valgus of the great toe." With this evidence, all the medical care was found by the examiner to be proper and evidence based. The Veteran was transferred to a facility that gave the best appropriated treatment to him within hours. The unfortunate course was not a consequence of mistreatment at VA. The proximate cause of any additional disability was not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the record does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ( "[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the examiner was aware of the Veteran's medical history, provided a fully articulated opinion, and also furnished a reasoned analysis. The Board therefore attaches significant probative value to this opinion, and the most probative value in this case, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Accordingly, and in light of the foregoing, the Board finds that the most probative evidence establishes that the VA physicians did not fail to exercise the degree of skill and care ordinarily required in diagnosing and treating the Veteran's left lower extremity disability. Therefore, the Board acknowledges that additional disability developed after the Veteran received VA treatment as his left lower extremity disability progressed to the point that amputations were necessary. The pertinent question is whether the VA failure to diagnose actually caused the development of the additional disability. See 38 C.F.R. § 3.361(c). In order for additional disability to be compensable under 38 U.S.C.A. § 1151, the additional disability must have been actually caused by, and not merely coincidental to, hospital care, medical or surgical treatment, or medical examination furnished by a VA employee or in a VA facility. 38 C.F.R. § 3.361(c)(1). Merely showing that the Veteran received care, treatment, or examination and that he has an additional disability does not establish cause. Id. In this regard, the March 2016 VA examiner discussed the course of the Veteran's treatment, noting that the Veteran had a history of gout and presented with symptoms consistent with that diagnosis. He was given antibiotic treatment. When it became apparent that the Veteran needed further treatment as gangrene was suspected, he was transferred to a facility that gave the best appropriated treatment to him within hours. Thus, the Veteran's current left extremity amputations were was not caused by VA treatment or the failure to diagnose/misdiagnosis with regard to gangrene. See 38 C.F.R. § 3.361(c). The VA examiner also opined that the proximate cause of any additional disability was not due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA. This is because the Veteran was afforded the proper treatment consistent with his presentation and history. If the Board finds that there is no "actual causation," it is unnecessary to address the next step of proximate causation (i.e., negligence and reasonable foreseeability). That is, because the evidence of record of record does not demonstrate additional disability caused by VA treatment, examination, or surgery, the analysis need not advance to the question of proximate cause, including negligence and reasonable foreseeability. Mangham v. Shinseki, 23 Vet. App. 284, 287-88 (2009); see also 38 U.S.C.A. § 1151(a)(1); 38 C.F.R. § 3.361(d). The Board notes that while the VA examiner in 2016 did address proximate cause (which he did not find), as noted, there was in actuality no actual causation. In light of the above, the Board finds that the criteria for entitlement to compensation under the provisions of 38 U.S.C.A. § 1151 for amputation of the left 2nd and 3rd toes due to gangrene and left below the knee amputation due to vascular compromise as the result of VA treatment or as the result of failure to diagnose during VA treatment in November 2010 have not been met, 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. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to compensation under 38 U.S.C. § 1151 for amputation of the left 2nd and 3rd toes due to gangrene and left below the knee amputation due to vascular compromise is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs