Citation Nr: 18150643 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 15-08 311 DATE: November 16, 2018 ORDER New and material evidence not having been received, the claim for service connection for bilateral hearing loss is not reopened. New and material evidence not having been received, the claim for service connection for tinnitus is not reopened. Compensation under 38 U.S.C. § 1151 for loss of right leg above knee is granted. Specially adapted housing is granted. Special home adaptation is denied. FINDINGS OF FACT 1. The evidence received since the final October 2005 rating decision denying service connection for bilateral hearing loss is duplicative, cumulative, or does not relate to an unestablished fact necessary to substantiate the claim, and does not raise reasonable possibility of substantiating the claim. 2. The evidence received since the final January 2009 Board decision denying service connection for tinnitus is duplicative, cumulative, or does not relate to an unestablished fact necessary to substantiate the claim, and does not raise reasonable possibility of substantiating the claim. 3. The loss of his right leg above the knee was proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault as a result of VA hospital treatment, that was reasonably foreseeable. 4. The Veteran has a permanent and total service-connected disability due to the loss of one lower extremity that precludes locomotion without aid of a cane or motorized scooter. CONCLUSIONS OF LAW 1. The criteria for reopening the claim of service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 2. The criteria for reopening the claim of service connection for tinnitus have not been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. 3. The criteria for compensation under the provisions of 38 U.S.C. § 1151 for loss of right leg above the knee have been met. 38 U.S.C. §§ 1151; 38 C.F.R. §§ 3.102, 3.361. 4. The criteria for specially adapted housing have been met. 38 U.S.C. §§ 2101(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.809. The criteria for special home adaptation have not been met. 38 U.S.C. §§ 2101(b), 5107; 38 C.F.R. §§ 3.102, 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1972 to May 1978. These matters are before the Board of Veterans’ Appeals (Board) on appeal from October 2013 and May 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). New and Material Evidence Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final decision of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118.   1. Whether new and material evidence has been submitted to reopen the claim for service connection for bilateral hearing loss. The Veteran’s claim for bilateral hearing loss was denied in an October 2005 RO rating decision. The decision found there was no treatment for hearing loss during service, there was no current diagnosis of hearing loss, and there was no relationship to service. The Veteran appeal and after a statement of the case was issued in September 2006, he perfected an appeal to the Board. At a November 2008 Board hearing, the Veteran withdrew the issue of service connection for bilateral hearing loss on the record. In a January 2009, the Board, prior to the promulgation of an appellate decision, dismissed the hearing loss issue in accordance with 38 C.F.R. § 20.204 based on the Veteran withdrawing his claim at a Board hearing in November 2008. As the 2009 Board did not reach the merits, the last final denial is the October 2005 rating decision. The Veteran filed a claim to reopen his bilateral hearing loss claim in September 2012. After review of the pertinent probative evidence of record, the Board finds that new and material evidence has not been submitted since the last final decision. After filing his claim to reopen the bilateral hearing loss issue in September 2012, additional contemporaneous medical records submitted with the claim from December 2010 to December 2014. The records primarily focus on his § 1151 claim or provide duplicate information. The records submitted from the filing of the petition to reopen offer no competent evidence regarding a nexus between his current hearing loss and his active service. Thus, after review of the record the Board finds that new and material evidence has not been received to reopen the claim of service connection for a bilateral hearing loss.   2. Whether new and material evidence has been submitted to reopen the claim for service connection for tinnitus. The Veteran’s claim for tinnitus was denied in a January 2009 Board rating decision. The decision found there was no indication of tinnitus during service and the first diagnosis of tinnitus was approximately 27 years following service. The Veteran did not appeal the Board’s decision to the Court of Appeals for Veterans Claims or request reconsideration; thus, the Board’s 2009 decision regarding tinnitus became final. 38 U.S.C. § 7104(e); 38 C.F.R. §§ 3.156, 20.1100. The Veteran filed a claim to reopen his tinnitus claim in September 2012. After review of the pertinent evidence of record, the Board finds that new and material evidence has not been submitted to reopen the claim. Contemporaneous medical treatment records have been associated with the file from December 2010 to December 2014. Some of the records are duplicative in nature and the remaining records offer no competent evidence to establish a nexus between the Veteran’s current tinnitus and his active service. There is no evidence of in-service treatment for tinnitus and the current diagnosis for tinnitus still remains approximately 27 years following his active military service. There is no indication in the contemporaneous medical records of evidence that could potentially substantiate the claim. As such, the Board finds that new and material evidence has not been received to reopen the claim for tinnitus. 38 U.S.C. § 1151 Claims A Veteran who suffers disability or death 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 or death 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 or died as a result of VA treatment or vocational rehabilitation. 38 U.S.C. § 1151(a). First, there must be evidence of additional disability or death, 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 or death 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). The proximate cause of the disability must have been carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the medical or surgical treatment. 38 U.S.C. § 1151(a)(1)(A). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical treatment proximately caused a Veteran’s additional disability; it must be shown that the medical or surgical treatment caused the Veteran’s additional disability 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 medical or surgical treatment without the Veteran’s informed consent. Id. Alternatively, the proximate cause of the disability may be an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1)(B); 38 C.F.R. § 3.361(d)(2). 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. 38 C.F.R. § 3.361(d)(2). 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. Id. 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). A Veteran bears the evidentiary burden to present and support all material elements of a claim. See 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In making its ultimate determination, the Board must give a Veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence (equipoise). Id. at 1287; see 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to VA compensation benefits under 38 U.S.C. § 1151 for loss of right leg above knee. The Veteran contends that the loss of right leg above the knee was the result of care that he received at a VA hospital. A VA medical opinion in October 2013 determined that the Veteran underwent a right lower extremity femoral to popliteal artery bypass on July 27, 2011, at a VA hospital. At the time of the surgery, the Veteran’s lower extremities were intact. Following the surgery, as will be discussed further below, his right leg was amputated below the knee. Thus, the Veteran incurred an additional disability following his VA hospital stay. As such, the first element of a § 1151 claim has been met. Regarding the second element of an § 1151 claim, whether the disability was proximately caused by the VA hospital, the Board finds that the competent medical evidence of record is in equipoise. As noted above, the Veteran underwent surgery on July 27, 2011. He was discharged two days later in “good condition” as described by the physician who performed the surgery in a letter dated July 2012. However, the Board notes that treatment records reveal that a positive culture was found for Methicillin-resistant Staphylococcus Aureus (MRSA) on the date of the Veteran’s surgery July 27, 2011. Therefore, the hospital was on notice that an infection had been discovered either directly before or after the surgery. However, he was still promptly discharged two days later without further testing for a potential infection. The surgeon provided details of the follow-up care in his July 2012 letter. The Veteran was seen 5 days after surgery for lower extremity edema. Then he was seen again 14 days later with ongoing edema and pain. No additional tests were conducted by VA regarding MRSA. A vascular ultrasound study was performed on August 9, 2011, which demonstrated no evidence of deep venous thrombosis and a widely patent bypass graft. Six days later, the Veteran was seen by his primary care physician on August 15, 2011, for continuing lower extremity pain. The surgeon then states a few weeks later the Veteran was admitted to a Kaiser hospital and the evaluation determined that the bypass graft was infected, which required removal and subsequent above the right knee amputation by his private doctor. The Board notes the date of his diagnosis for MRSA was August 30, 2011, 15 days after his first private doctor visit, which was provided in a VA opinion letter dated October 2013. The VA opinion letter will be discussed further below. However, the Board further notes that the surgeon concluded his letter by stating that the Veteran’s disability was clearly due to the right lower extremity limb loss. The limb loss was due to a complication of right leg bypass performed at a VA hospital and the complication was a known complication; that of infection, which led to the Veteran’s amputation. In October 2013, a VA medical opinion was requested to determine whether or not the VA’s treatment was the proximate cause of the Veteran’s right leg amputation. The VA examiner characterized the issue for discussion as whether or not the Veteran contracted MRSA while hospitalized at the VA hospital. He stated that he could neither verify nor refute the claim as there were no microbiology studies during the hospitalization. As noted above, this is an inaccurate assessment as a positive culture for MRSA was determined on the date of the Veteran’s bypass surgery on July 27, 2011. Further, the medical opinion stated that the surgeon performed a polytetrafluoroethylene (PTFE) graft as opposed to a saphenous vein graft. An important distinction, because the examiner states that the graft choice while not unreasonable may have contributed to the septic episode due to a prosthetic as opposed to a autologous conduit. In addition, the examiner annotates a history of significant leg swelling and serious drainage that was reportedly coming from the wound. Based on the swelling and drainage the examiner opined that after the Veteran’s August 15th visit to the VA it seemed a long period of time before his next appointment, which was one month later. The final paragraphs of the medical opinion assert that the care was within the standard, however, the periods of follow-up if changed somewhat may have altered the outcome. Moreover, ultrasound studies suggest some flow issues of the common femoral endarterectomy, which more frequent follow-up may have been able to address. Thus, a recognition of the graft failing and the amputation could have potentially been avoided. Based on the evidence above, the Board finds that the evidence is in balance as to whether or not the Veteran’s right leg amputation was caused by his VA hospitalization. Here, test results show that MRSA was conclusively determined while the Veteran was hospitalized. Therefore, the VA hospital was on notice of an infection. Moreover, the surgeon who performed the surgery stated in his letter addressing the surgery that infection was a known complication. Following the surgery, the Veteran continued to exhibit edema and pain. The VA did not conduct another MRSA test to determine if the infection had returned. Further, although the October 2013 VA medical opinion did not provide a direct causal relationship between the hospital stay and the amputation; the medical opinion questioned the choice of the graft utilized by the surgeon and opined whether more frequent follow-up care may have prevented the graft from failing resulting in the amputation. Therefore, the Board finds the probative evidence of record is in balance. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As such, entitlement to compensation benefits under 38 U.S.C. § 1151 is warranted. Specially Adapted Housing and Special Home Adaptation Specially adapted housing is available to a Veteran who has a permanent and total service-connected disability due to: (1) the loss, or loss of use, of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair; or (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity; or (3) the loss or loss of use of one lower extremity, together with residuals of organic disease or injury, or with loss of use of one upper extremity, which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes or a wheelchair. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. The term “preclude locomotion” means the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(c). If entitlement to specially adapted housing is not established, a Veteran can qualify for a grant for necessary special home adaptations if he/she has compensation based on permanent and total service-connected disability that: includes the anatomical loss or loss of use of both hands, or is due to blindness in both eyes with 5/200 visual acuity or less, or deep partial thickness burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk, or full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk, or residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). 38 C.F.R. § 3.809a(b). The assistance referred to in this section will not be available to any Veteran more than once. 38 C.F.R. § 3.809a(a). In the present case, the Veteran’s claim for specially adapted housing was denied in a May 2016 RO rating decision. In October 2017, the Veteran’s representative was contacted in order to seek authorization to complete a statement of the case (SOC) regarding a notice of disagreement (NOD) filed in May 2017. The rationale for completing the SOC was to enable the Board to consider the intertwined issues of the Veteran’s § 1151 loss of right leg above the knee claim and the specially adapted housing request. The Board has determined that the Veteran’s right leg amputation was the result of the care that he received at a VA hospital, therefore the loss of his right leg above the knee claim is granted. As such, the Veteran is eligible for specially adapted housing certificate. Treatment records from December 2014, reveal that the Veteran has a prosthetic lower right limb and ambulates with a cane. In addition, he had been provided a scooter for more lengthy trips outside his home. As such, the competent clinical evidence of record established that he is precluded from locomotion without the regular, constant use of a cane or other mode of locomotion, such as a scooter. As such, the Board finds that the evidence meets the requirements for specially adapted housing and a certificate is warranted. Where entitlement to a certificate of eligibility for specially adapted housing is not established, an applicant may nevertheless qualify for a special home adaptation grant. 38 U.S.C. § 2101(b); 38 C.F.R. § 3.809a. In this case, however, the Veteran has been granted a certificate of eligibility for specially adaptive housing, which is a greater benefit. Therefore, any claim for a special home adaptation grant under 38 U.S.C. § 2101(b) is rendered moot, as this benefit is available only if a veteran is not entitled to the more substantial benefit of specially adapted housing under 38 U.S.C. § 2101(a). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel