Citation Nr: 18160780 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 17-55 986A DATE: December 28, 2018 ORDER Whether new and material evidence has been submitted to reopen a previously denied and final claim of entitlement to compensation under 38 U.S.C. § 1151 for vascular disease is granted. Whether new and material evidence has been submitted to reopen a previously denied and final claim of entitlement to compensation under 38 U.S.C. § 1151 for left heel ischemia is granted. Whether new and material evidence has been submitted to reopen a previously denied and final claim of entitlement to compensation under 38 U.S.C. § 1151 for bed sores is granted. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for left heel ischemia for purposes of accrued benefits is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for vascular disease for purposes of accrued benefits is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for bed sores for purposes of accrued benefits is remanded. Entitlement to service connection for the Veteran's cause of death for purposes of entitlement to dependency and indemnity compensation (DIC) benefits is remanded. FINDINGS OF FACT 1. Since the June 2009 statement of the case, the appellant has provided additional evidence regarding the previously denied and final claim of entitlement to compensation under 38 U.S.C. § 1151 for vascular disease. 2. Since the June 2009 statement of the case, the appellant has provided additional evidence regarding the previously denied and final claim of entitlement to compensation under 38 U.S.C. § 1151 for left heel ischemia. 3. [Since the June 2009 statement of the case, the appellant has provided additional evidence regarding the previously denied and final claim of entitlement to compensation under 38 U.S.C. § 1151 for bed sores. CONCLUSIONS OF LAW 1. New and material evidence having been received, the claim of compensation under 38 USCA § 1151 for vascular disease is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 2. New and material evidence having been received, the claim of compensation under 38 USCA § 1151 for left heel ischemia is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. 3. New and material evidence having been received, the claim of compensation under 38 USCA § 1151 for bed sores is reopened. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1949 to August 1952. The Veteran died in September 2017. The appellant is the Veteran’s surviving spouse who has successfully substituted as appellant on the Veteran’s claims of entitlement to compensation under 38 U.S.C. § 1151 for vascular disease, left heel ischemia, and bed sores. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2015 and October 2017 issued by a Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction over the appeal presently rests with the Pension Management Center (PMC) in Philadelphia, Pennsylvania. 1151 Eligibility – New and Material Evidence 1. Whether new and material evidence has been submitted to reopen a previously denied and final claim of entitlement to compensation under 38 U.S.C. § 1151 for vascular disease 2. Whether new and material evidence has been submitted to reopen a previously denied and final claim of entitlement to compensation under 38 U.S.C. § 1151 for left heel ischemia 3. Whether new and material evidence has been submitted to reopen a previously denied and final claim of entitlement to compensation under 38 U.S.C. § 1151 for bed sores The appellant has successfully substituted as appellant on the Veteran’s claims to reopen his previously denied and final claims for compensation under 38 U.S.C. § 1151. She now seeks to reopen those claims. If a claim was previously denied by a RO or Board decision, and that RO or Board decision became final, then the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Even if the RO (in a rating decision, statement of the case, or supplemental statement of the case) has already determined that new and material evidence has been submitted, in the appeal, a new and material evidence analysis must still be completed by the Board. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). In general terms, “new” evidence is evidence that was not of record at the time that the prior final RO or Board decision was issued. “Material” evidence is evidence that addresses the element(s) of service connection that were deficient (and therefore the basis of denial) in the prior final RO or Board decision. See 38 C.F.R. § 3.156 (a). The Board finds that the claims should be reopened. The Veteran, prior to his death, sought compensation under 38 U.S.C. § 1151 for vascular disease, left heel ischemia, and bed sores which was denied in a June 2008 rating decision. Although he filed a notice of disagreement and a statement of the case was issued in June 2009, he did not formalize that appeal to the Board and it subsequently became final. Prior to his death in 2017, the Veteran sought to reopen those denials. The initial 2008 denial was based exclusively on consideration of a hospital stay at the VA Medical Center in Brockton, Massachusetts, between July and November 2007. In October 2014, as part of the claim to reopen the previously denied § 1151 claims, the appellant submitted a letter stating that his vascular disease, left heel ischemia, and bed sores, were the result of negligent care by VA following a knee surgery in August 2005. A 19 page narrative of his care from August 2005 through May 2014 has also been associated with the claims file which outlines the belief that his claimed disabilities were the result of a 2005 surgery, and not the 2007 hospitalization. This evidence is new in that it was not of record at the time of the prior denials. It is material in that it addresses a previously deficient element, namely a possible link to an earlier hospitalization than was considered by VA in now final decision. As such, the claims of entitlement to compensation under 38 U.S.C. § 1151 for vascular disease, left heel ischemia, and bed sores are reopened; to this limited extent the, appeals are granted. REASONS FOR REMAND 1. Entitlement to compensation under 38 U.S.C. § 1151 for left heel ischemia for purposes of accrued benefits is remanded. 2. Entitlement to compensation under 38 U.S.C. § 1151 for vascular disease for purposes of accrued benefits is remanded. 3. Entitlement to compensation under 38 U.S.C. § 1151 for bed sores for purposes of accrued benefits is remanded. To date, the claims of entitlement to compensation under 38 U.S.C. § 1151 have been evaluated based on negligent care during a hospitalization which occurred between July and November 2007. However, the appellant has asserted that the Veteran’s disabilities were, in fact, the result of a 2005 total knee replacement surgery which was conducted at a VA facility. To date, that theory of the claim has yet to be adjudicated. Particularly, there is no medical opinion of record which addresses that theory of compensation. As such, a medical opinion should be obtained. In conjunction with obtaining the above medical opinion, VA should also make all necessary attempts to enure the Veteran’s complete medical records are associated with the claim file, to include any records pertaining to his 2005 knee replacement surgery and subsequent care.   4. Entitlement to service connection for the Veteran's cause of death for purposes of entitlement to dependency and indemnity compensation (DIC) benefits is remanded. The appellant asserts that the Veteran’s cause of death was related to his active service. To date, a medical opinion has not been obtained which addresses whether the Veteran’s various cases of death are related to service. Particularly, the Board notes that the Veteran was service connected for residuals of a cold injury of the bilateral feet with amputation of the right great toe and second toe. A July 2014 statement from the Veteran’s treating physician indicated that he was essentially bed- or chair-bound, and listed his lower extremity disability as one of the causative factors. To the extent that this disability may have contributed to his various causes of death, any medical opinion must also include an opinion on secondary service connection of his causes of death. The matters are REMANDED for the following action: 1. Invite the appellant to submit any additional evidence in support of her claims. VA should make all necessary attempts to ensure the Veteran’s complete VA treatment record is associated with the claims file. 2. Obtain a medical opinion by an appropriate clinician to determine the nature and etiology of any vascular disease, left heel ischemia, and bed sores. The examiner should answer the following questions: • Whether the disabilities claimed are the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in conducting a total knee replacement in 2005, and any subsequent treatment thereafter? • Whether, in the course of conducting a total knee replacement in 2005 and any subsequent treatment thereafter, VA failed to exercise the degree of care that would be expected of a reasonable health care provider? • Was the Veteran’s vascular disease, left heel ischemia, and/or bed sores an event not reasonably foreseeable, i.e., would a reasonable health care provider have considered these disabilities to be an ordinary risk of the treatment at issue. 3. Obtain an opinion by an appropriate clinician to determine the nature and etiology of any respiratory failure, chronic obstructive pulmonary disease (COPD), diabetes mellitus, congestive heart failure, chronic kidney disease, atrial fibrillation, hypertension, or peripheral vascular disease. The examiner must opine whether these disabilities were at least as likely as not related to an in-service injury, event, or disease, including his in-service cold injury.   The examiner should also state whether his listed causes of death were at least as likely as not (1) proximately due to his service-connected disabilities, or (2) aggravated beyond its natural progression by service-connected disabilities, to include his cold injury residuals with amputation. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel