Citation Nr: 1754828	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  16-49 684	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to compensation under 38 U.S.C. § 1151 for postoperative residuals of a bunionectomy, to include right foot hammertoe.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

E. Ko, Associate Counsel



INTRODUCTION

The Veteran had active service from June 1959 to June 1962.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.    

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c)(2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The Veteran's right foot hammertoe is the result of his March 1990 right foot surgery and represents an outcome which was not reasonably foreseeable.


CONCLUSION OF LAW

The criteria for entitlement to benefits under 38 U.S.C. § 1151 for right foot hammertoe have been met.  38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist

In light of the favorable decision herein, a detailed discussion as to how VA satisfied its duty to notify and to assist pursuant to the Veterans Claims Assistance Act of 2000 is not required.  38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017).  

Relevant Laws and Regulations

Compensation under 38 U.S.C. § 1151 is granted for additional disability or death if the additional disability or death was not the result of willful misconduct, the actual cause of the additional disability or death was VA hospital care, medical or surgical treatment, or examination, and the proximate cause of the additional disability or death was either carelessness, negligence, lack of proper skill, error in judgment or similar fault, or an event not reasonably foreseeable.  38 U.S.C. § 1151(a); 38 C.F.R. §§ 3.361(c), (d).

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 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. § 1151(a); 38 C.F.R. § 3.301(c)(3).

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).  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)(1).  In order for additional disability to be compensable under 38 U.S.C. § 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.  Id.  

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. § 1151(a)(1); 38 C.F.R. § 3.361(d). 

Thus, 38 U.S.C. § 1151 contains two causation elements - an additional disability must not only be "caused by" the hospital care or medical treatment received from VA, but also must be "proximate[ly] cause[d]" by the VA's "fault" or an unforeseen "event."  38 U.S.C. § 1151(a)(1).  

Analysis

The Veteran meets the requirements of an additional disability for his right foot hammertoe.  The evidence establishes that the Veteran did not have a hammertoe in his right foot before the March 1990 bunionectomy on his right big toe.  The record shows that the earliest reference to a diagnosis of hammertoe was in September 2002.

Additionally, the evidence shows that the right foot hammer toe was actually caused by medical or surgical treatment furnished by VA.  The August 2013 VA examiner opined that the right foot hammertoe was "undeniably" the result of the March 1990 bunionectomy.  Hence, the remaining question is whether the proximate cause of the hammer toe was either (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the medical or surgical treatment or (2) an event that was not reasonably foreseeable.  

In March 1990, the Veteran signed a statement acknowledging the nature of the bunionectomy and its risks, which included stiffness, loss of correction, nonunion of bone cut, nerve or blood vessel injury, blood clots, infection, and anesthetic risks.  

In an August 2013 VA medical opinion, the examiner opined that the March 1990 operation resulted in a right foot hammertoe, but also found that there was no demonstrable carelessness, neglect, lack of proper skill, error in judgment, or fault on the part of the attending VA personnel.  The examiner further explained that the development of a right foot hammertoe was an "unusual, rare, complication" of the bunionectomy.  

Since the development of a hammertoe condition was not noted as a risk in March 1990 and was found to be an unusual and rare complication by the August 2013 examiner, the Board finds that it was not a reasonably foreseeable event and entitlement to compensation under 38 U.S.C. § 1151 for postoperative residuals of a bunionectomy, to include right foot hammertoe, is established.


ORDER

Entitlement to compensation under 38 U.S.C. § 1151 for postoperative residuals of a bunionectomy, to include right foot hammertoe, is granted, subject to the provision governing the award of monetary benefits.




____________________________________________
Lesley A. Rein
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs