Citation Nr: 18144430 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-29 877 DATE: October 24, 2018 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for left leg below the knee amputation surgery is denied. FINDING OF FACT The Veteran does not have additional disability due to amputation of the left leg resulting from the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing treatment, nor was such disability proximately caused by an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation pursuant to under 38 U.S.C. § 1151 for an additional disability as due to left leg amputation surgery by VA in November 2014 have not been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1979 to August 1980. This case came before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. 1151 for left leg below the knee amputation Laws and Regulations A veteran who suffers disability resulting from hospital care or medical or surgical treatment provided by a VA employee or in a VA facility is entitled to compensation for the additional disability “in the same manner as if such additional disability... were service-connected” if the additional disability was not the result of willful misconduct and was proximately caused by “carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of [VA] in furnishing” that treatment or “an event not reasonably foreseeable.” 38 U.S.C. § 1151 (a)(1)(A), (B); 38 C.F.R. § 3.361 (a)-(d); Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The purpose of the statute is to award benefits to those veterans who were disabled as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151 (a). 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. § 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. 38 C.F.R. § 3.361 (c)(1); Loving v. Nicholson, 19 Vet. App. 96, 99-100 (2005); Sweitzer v. Brown, 5 Vet. App. 503, 505 (1993). That is, the additional disability must have been the result of injury that was part of the natural sequence of cause and effect flowing directly from the actual provision of “hospital care, medical or surgical treatment, or examination” furnished by VA and such additional disability must be directly caused by that VA activity. Loving, 19 Vet. App. at 101. 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau, 492 F.3d at 1376-77. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017). Factual Background and Analysis The Veteran contends that as a result of his amputation of the left leg below the knee surgery at the VA in November 2014, he developed additional disability to include methicillin-resistant Staphylococcus aureus (MRSA), pain and critical limb ischemia. The Veteran specifically claimed that after his surgery he was placed in a room with a patient who had MRSA. As a result, the Veteran contends that he contracted MRSA from that patient and developed MRSA and left lower extremity critical limb ischemia with severe left leg pain and above knee, left leg amputation. The record demonstrates that the Veteran underwent amputation of the left leg below the knee surgery at the VA in November 2014. The Veteran underwent a VA Disability Benefits Questionnaire for his 38 U.S.C. § 1151 claim in March 2016. It was noted that the Veteran had a left below the knee amputation in November 2014 and a left above the knee amputation in July 2015. For the November 2014 surgery, the examiner specifically noted that informed consent was obtained for the procedure of below the knee amputation. Known risks and side effects of the treatments and procedure were discussed including infection that may require further antibiotics and/or further surgery, phantom limb pain, nerve or blood vessel injury, temporal/permanent numbness of the extremity scarring less than complete recovery normal functions and failure to heal the incision amongst others. The examiner noted that all questions and concerns were noted as appropriately addressed and all risks were explained to the Veteran. The examiner also noted that it was documented that the Veteran understood the procedure and wanted to proceed with the surgery. The examiner indicated that the November 2014 surgery was for a history of left lower extremity critical limb ischemia which required a below the knee amputation. The surgery was performed on November 17, 2014 and contact precautions for MRSA and infection control were carried out by the prevention coordinator. The post-surgical treatment consisted of standard wound care, edema management and anti-contracture management. On November 20, 2014 he was transferred to the general floor for post-operative recovery. On November 23, 2014, he fell in the bathroom and there was some little bleeding. He was discharged on December 1, 2014. On February 26, 20015, he was seen for chills and a tender wound. As a result, he was diagnosed with an abcess of the left below the knee stump. He was admitted for prothesis fitting on July 6, 2015 but did not tolerate the trans tibial prothesis and required revision to a transfemoral amputation as vascular had recommended at the same time as the trans tibial amputation. On July 15, 2015 the Veteran again underwent surgery. The examiner noted that the Veteran had a history of below the knee amputation of the left knee with a defective stump and amputation up to the thigh recommended. The examiner indicated that the Veteran reported that his left leg amputation surgery performed at the VA in November 2014 was done poorly and resulted in subsequent infections. The examiner opined that it was less likely than not that the amputation surgery and subsequent treatment/infections he suffered at the VA Medical Center (VAMC) in Minneapolis were the result of careless, negligence, lack of proper skill, error in judgment or fault of the VA. The examiner found that the standard of care for amputation and prosthetic care provided was the care of the customary practice of a knee amputation and was carried out by a specialist (vascular surgeon). The examiner noted that the informed consent was read to the Veteran prior to the surgery and all questions and concerns were noted as appropriately addressed. Additionally, all risks, including but not limited to bleeding, infection, problems with the wound related to the infection or wound breakdown, clot forming in a vein that may require a blood thinner, heart attack and death was explained to the Veteran. It was documented that the Veteran understood the procedure and wanted to proceed with the surgery. The examiner noted that contact precautions for MRSA and infection control were carried out by a prevention coordinator. The post-surgical treatment consisted of standard wound care, edema management and anti-contracture management. The examiner indicated that no harm was committed. The Veteran eventually had an abcess which was a complication of such procedure and this was included in the informed consent document. Based upon the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to compensation under 38 U.S.C. § 1151 as a result of VA treatment for a left leg amputation surgery in November 2014. The Board acknowledges that additional disability developed after the Veteran received November 2014 VA treatment as he required a subsequent July 2015 above the knee left leg amputation surgery as a result of subsequent treatment/infections as the Veteran had an abcess on the stump of the left leg. However, 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. 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 left lower extremity critical limb ischemia which required a below the knee amputation. The surgery was performed on November 17, 2014 and contact precautions for MRSA and infection control were carried out by the prevention coordinator while the post-surgical treatment consisted of standard wound care, edema management and anti-contracture management. As noted above, the March 2016 VA examiner specifically opined that that it was less likely than not that the amputation surgery and subsequent treatment/infections he suffered at the VAMC in Minneapolis were the result of careless, negligence, lack of proper skill, error in judgment or fault of the VA. The examiner specifically indicated that the standard of care for amputation and prosthetic care provided was the care of the customary practice of a knee amputation and was carried out by a specialist (vascular surgeon). The examiner also noted that the informed consent was read to the Veteran prior to the surgery and all questions and concerns were noted as appropriately addressed while all risks were explained to the Veteran. The examiner noted that it was documented that the Veteran understood the procedure, wanted to proceed with the surgery and that contact precautions for MRSA and infection control were carried out by a prevention coordinator. Finally, the examiner indicated that post-surgical treatment consisted of standard wound care, edema management and anti-contracture management while the Veteran’s eventual abcess was a complication of such procedure and this was included in the informed consent document. Notably, the March 2016 VA examiner’s opinions are supported by thorough rationale and explanation that are based on facts gained from an accurate review of the record and are consistent with the facts in the record. Moreover, those opinions are not rebutted in the record by any contrary opinions rendered by a medical professional. Accordingly, the Board assigns significant probative weight to the VA examiner’s opinions. As noted above, the Veteran and his representative have claimed that as a result of his amputation of the left leg below the knee surgery at the VA in November 2014, the Veteran developed additional disability to include MRSA and critical limb ischemia which eventually resulted in the amputation of his left leg above the knee in July 2015. The Veteran specifically claimed that after his surgery he was placed in a room with a patient who had MRSA and that as a result he developed MRSA and left lower extremity critical limb ischemia with severe left leg pain and above knee, left leg amputation. In addressing lay evidence and determining what, if any, probative value may be assigned to it, the Board must consider elements of both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Here, neither the Veteran nor his representative are competent to offer a probative opinion as to the complex medical questions regarding the degree of medical care rendered for the Veteran’s left leg and the appropriateness of that care. Such an opinion requires critical analysis of the Veteran’s medical history, advanced knowledge of the Veteran’s conditions, and application of learned medical principles to the specific facts of this case. Accordingly, the opinions expressed by the Veteran and his representative regarding the degree and appropriateness of care rendered to the Veteran are entitled no probative weight. In contrast, the Veteran assigns far greater weight to the findings and conclusions reported by the March 2016 VA examiner. In summary, there is no competent evidence showing that any additional disability resulting from the November 2014 treatment is the product of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, or by an event not reasonably foreseeable, or that informed consent was not obtained. In light of the above, the Board finds that the criteria for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for amputation of the left leg above the knee as the result of VA treatment in November 2014 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. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel