Citation Nr: 18157476 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 14-12 715 DATE: December 12, 2018 ORDER Compensation under 38 U.S.C. § 1151 for residuals of aneurysmectomy with aortal femoral bypass graft and reimplantation of the interior mesenteric artery with numerous fasciotomies, wound debridements, and wound irrigations is denied. Service connection for impaired renal function, to include compensation under 38 U.S.C. § 1151 as secondary to residuals of aneurysmectomy with aortal femoral bypass graft and reimplantation of the interior mesenteric artery, is denied. FINDINGS OF FACT 1. The competent evidence does not show that the Veteran sustained additional disability as a result of VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault, or an event not reasonably foreseeable; and does not show that VA failed to treat the Veteran in a timely manner. 2. The competent evidence does not show that the Veteran sustained a renal disability in service or within one year of his discharge from active service nor does it show that a renal disability is otherwise attributable to his period of active service. CONCLUSIONS OF LAW 1. Compensation benefits under 38 U.S.C. § 1151 for residuals of aneurysmectomy with aortal femoral bypass graft and reimplantation of the interior mesenteric artery with numerous fasciotomies, wound debridements, and wound irrigations are not warranted. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2017). 2. The criteria for entitlement to service connection for impaired renal function, to include compensation under 38 U.S.C. § 1151, are not met. 38 U.S.C. §§ 1101, 1110, 1151 (2012); 38 C.F.R. §§ 3.303, 3.361 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1961 to March 1965. He died in April 2017 and his sister was substituted as the appellant in the present matter. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. Jurisdiction over the Veteran’s claims has since been transferred to the RO in Reno, Nevada. The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2015. In September 2015 and June 2016, the Board remanded this case for further development. The Board finds that there has been substantial compliance with the remands’ directives and will address the merits of the appeal. See Stegall v. West, 11 Vet. App. 268 (1998) (noting that a remand by the Board confers on the appellant, as a matter of law, the right to substantial compliance with the remand). 1. Entitlement to compensation under 38 U.S.C. § 1151 for residuals of aneurysmectomy with aortal femoral bypass graft and reimplantation of the interior mesenteric artery with numerous fasciotomies, wound debridements, and wound irrigations. 2. Entitlement to service connection for impaired renal function, to include compensation under 38 U.S.C. § 1151 as secondary to residuals of aneurysmectomy with aortal femoral bypass graft and reimplantation of the interior mesenteric artery. Under certain circumstances, VA provides compensation for additional disability resulting from VA medical treatment in the same manner as if such disability were service-connected. See 38 U.S.C. § 1151 (2012). For a claimant to qualify for such compensation, the additional disability must not be the result of the veteran’s willful misconduct, and such disability must be caused by hospital care, medical or surgical treatment, or examination furnished to the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility. 38 U.S.C. § 1151(a). For a claimant to be entitled to compensation when additional disability is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361 (2017). To determine whether a veteran has additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the veteran’s condition after such care, treatment, or examination is completed. To establish actual causation, the evidence must show that VA hospital care, medical or surgical treatment, or examination resulted in the veteran’s additional disability or death. Merely showing that a veteran received care and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). The proximate cause of disability or death is the action or event which directly caused the disability or death, 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 hospital care, medical or surgical treatment, or examination proximately caused a veteran’s additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran’s additional disability or death, and that (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, medical or surgical treatment, or examination without the veteran’s, or in appropriate cases, his representative’s, informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a veteran’s additional disability or death was an event not reasonably foreseeable is 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. 38 C.F.R. § 3.361(d)(2). In addition, 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. 38 U.S.C. § 1151; Roberson v. Shinseki, 607 F.3d 809, 816-17 (Fed. Cir. 2010). Generally, the Veteran asserted that a September 2005 surgery and subsequent VA care including treatment for infections, wound debridements and irrigations caused him to sustain additional disabilities to his right leg, left leg, and kidneys due to an event not reasonably foreseeable or as the result of careless, negligence, lack of proper skill, error in judgment or similar instance of fault. More specifically, the Veteran contended that he contracted methicillin-resistant staphylococcus aureus (MRSA) and staphylococcus (staph) infections due to unsanitary conditions at the VA hospital in Little Rock that are thus the result of negligence. The Veteran also asserted that in October 2011, after he had filed his 1151 claim, that his home care nurses were attempting to schedule an appointment with VA wound care specialists but that they were unable to do so and that as a result he went to a private wound doctor. Subsequently, the Veteran underwent a left leg amputation at the knee and contends that if he had been allowed to see a VA doctor or a private doctor sooner, the amputation would not have been necessary. The Veteran reported that he was told as much in essence by the private doctor who performed the operation. The record contains multiple medical opinions regarding VA’s actions following the Veteran’s September 2005 aneurysmectomy and subsequent debridements and irrigations. In November 2010, a VA examiner noted that the Veteran sustained additional disability to his right leg due to a 2005 peripheral vascular disease surgery, but his kidney disorder was not related to the 2005 surgery. The examiner opined that the kidney disorder was due to a combination of the Veteran’s diabetes and his hypertension, although the most recent studies at that time indicated normal renal function. Similarly, in January 2011, the examiner opined again that the Veteran’s right leg disability is related to the complications that he had from surgery for his peripheral vascular disease in 2005. The Veteran had multiple wound infections and required several irrigations and debridement and antibiotic therapy. He had extensive infection that did not heal completely and had a lot of his problems in his right leg after his surgery as described in my previous examination. However, these problems are not due to carelessness, negligence, lack of skill, or similar instance default on part of the attending VA personnel, as infection is always a possible complication of the type of surgery undergone. Further, it was not due to the VA’s failure to timely diagnose or properly treat the claimant that allowed disability to progress. In February 2011, a VA examiner reported that the Veteran had an unfavorable outcome and extensive post-operative course, but such an outcome was discussed pre-operatively. He was fully informed and agreed to proceed with the procedure. The examiner opined that neither the VA nor VA personnel were negligent, careless, or demonstrated lack of skill. In August 2016, a VA physician provided another negative nexus opinion. The physician explained that the Veteran had symptomatic extensive peripheral arterial disease and a pre-operative angiogram showed extensive arterial disease with moderate diffuse disease in common iliac, moderate to severe in right common femoral, severe in left common femoral with occlusion, moderate deep left femoral disease, right occluded popliteal and superficial femoral mid-calf occlusion, left popliteal moderate proximal disease and occlusion level of knee with reconstitution collaterals with at least moderate disease in anterior tibial and peroneal arteries. According to the physician, this shows that, pre-operatively, the Veteran had significant risk for limb loss from underlying preexisting extensive peripheral arterial disease. Untreated, this disease would have progressed and resulted in further limb ischemia and likely limb loss. In diabetics, revascularization surgery can be unsuccessful in saving limbs at times. Since the small distal peripheral arteries are stenotic and blocked, even if proximal flow is restored, the distal tissue perfusion cannot be restored surgically. This results in nonhealing wounds and gangrene that require amputation. Here, the Veteran’s progressive vascular disease ultimately required limb amputation. The physician noted that it is unfortunate that the limb cannot always be salvaged in severe cases. Untreated, the large aortic aneurysm could have resulted in fatal rupture. Therefore, the Veteran’s aortic aneurysm and peripheral arterial disease required complex reconstructive vascular surgery in 2005. Further, when operating on the aorta and lower extremity vessels, the atherosclerotic disease increases risks for limb ischemia and limb loss post-surgery. The required clamping of the aorta during surgery strains the heart and limits blood flow to vital organs and extremities. Therefore, organ failure, myocardial infarction, limb loss, and mortality are known complications of this type of extensive surgery. The existing diabetes and coronary artery disease increased the risk for myocardial infarction, and the existing diabetes increased the risk for organ damage, myocardial infarction, limb ischemia with limb loss, and nonhealing wounds. Additionally, regarding the renal complications, the physician noted that extensive fluid shifts occur in the body during this kind of surgery. In combination with the fluid shifts and limb ischemia, the extremities swell, and fasciotomies are then required to release the extreme pressure from the marked swelling in the legs. The fluid shifts, limb ischemia, and aortic clamping all contributed to renal failure and that is a known complication after aortic surgery. Post-operative wound infections are also increased in diabetes, which causes depressed immune function with greater susceptibility to infections. Furthermore, peripheral artery disease with decreased blood flow to the extremities contributes to poor healing and decreased ability to fight infections. Overall, the 2005 and 2011 surgical intervention and treatment did cause the infections, wounds, and complications as noted, but these complications are not unexpected from vascular surgery. The Veteran’s conditions required extensive treatment in intensive care and were managed by multiple specialists in appropriate multidisciplinary fashion. According to the reporting physician, there is no evidence to support that the Veteran sustained additional disability due to an event not reasonably foreseeable or as the result of carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of the VA. Notably, the physician reported that she agrees with the 2015 medical opinion that vascular surgery is considered a high-risk surgery. In addition, patients who usually undergo such surgeries are high-risk patients, which is true in the present case, as the Veteran already had established diagnoses of coronary artery disease, status post coronary artery bypass grafting, and diabetes. Complications such as the ones the Veteran had—acute myocardial infarction, acute renal failure, and thrombus—are not uncommon. Further, there are several notes documenting that Veteran consented to his surgery, including a vascular note dated September 23, 2005, which indicates that he understood the risks and benefits of the procedure and wished to proceed. Per an operative note, the risks and benefits were discussed at length and including, but were not limited to, heart attack, death, arterial thrombosis, loss of limbs, inability to restore normal blood flow, and renal failure. Regarding his post-operative care, he was appropriately being followed by the wound and vascular clinic. Peripheral vascular disease, diabetes, and smoking—all of which the Veteran had at the time—are known to be risk factors for wound healing and are not factors that can be attributed to careless, negligence or lack of proper skill. Poor blood flow from the underlying peripheral arterial disease causes limb ischemia and then wounds, ulcers, gangrene, and limb loss can occur. The renal dysfunction that resulted after the 2005 surgery improved and a 2010 examination notes a normal Creatinine level, which indicates that subsequent renal dysfunction was due to the progression of the Veteran’s diabetes with diabetic nephropathy. The Board finds that the foregoing medical opinions, when reviewed together, are adequate because the examiners reviewed the Veteran’s relevant medical history and offered clear opinions regarding the relationship between the Veteran’s condition and his VA treatment. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Although the Veteran maintained that he was told by his private physician that his knee amputation was due to a failure in the standard of care on VA’s part, the record does not contain such a statement and the Veteran did not respond to VA’s requests for authorization to obtain such a statement. Thus, based on the foregoing, the Board finds that the record is negative for competent evidence that the Veteran sustained additional disability as a result of VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault; or an event not reasonably foreseeable. The evidence also fails to show that VA failed to treat the Veteran in a timely manner. The Board also finds that service connection is not warranted for a renal condition, as such a condition was not shown during service or within one year of the Veteran’s discharge from active service and the competent evidence does not show that such a condition is etiologically related to the Veteran’s period of active service. See 38 C.F.R. § 3.303 (2017). Although the Veteran and appellant asserted that compensation is warranted, the Board finds that lay persons are not competent to provide evidence regarding matters as complex as determining what degree of care is expected of a reasonable healthcare provider. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (a claimant is competent to report on that of which he or she has personal knowledge). Accordingly, the appeal is denied. There is no doubt to be resolved.   38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. C. Wilson, Counsel