Citation Nr: 1823914	
Decision Date: 04/19/18    Archive Date: 04/26/18

DOCKET NO.  14-28 073A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for bilateral Achilles tendonitis.

2.  Entitlement to compensation under 38 U.S.C. § 1151 for additional disability of the right Achilles tendon as a result of VA treatment in July 2010 and September 2011.


REPRESENTATION

Veteran represented by:	Georgia Department of Veterans Services


ATTORNEY FOR THE BOARD

Steven D. Najarian, Associate Counsel



INTRODUCTION

The Veteran served on active duty from June 1973 to June 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

The Board remanded this matter in an August 2016 order.  The order granted the Veteran's August 2012 request to reopen a claim of entitlement to service connection for bilateral Achilles tendonitis.  The reopened claim was remanded by the Board for further development, and the issue is again before the Board following the issuance of a supplemental statement of the case (SSOC) in May 2017.

The Board's August 2016 remand also construed a May 2013 filing of the Veteran as a § 1151 claim relating to the right Achilles tendon.  The Board ordered a VA examination and opinion as to facts relevant to a § 1151 claim, namely the effect of specific VA treatment, possible VA negligence, informed consent of the Veteran, and foreseeable consequences of the VA treatment.  The narrative of the May 2017 SSOC denied the Veteran's § 1151 claim without listing it as a separate issue.  Under the circumstances, the Board has listed the Veteran's § 1151 claim relating to his right Achilles tendon as a separate issue on appeal.

The issue of entitlement to service connection for bilateral Achilles tendonitis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran suffered additional disability of the right Achilles tendon, including pain and inflammation, from VA treatment and not as a result of the Veteran's willful misconduct; the proximate cause of the additional disability was not reasonably foreseeable.


CONCLUSION OF LAW

The criteria for compensation under 38 U.S.C. § 1151 for additional disability of the right Achilles tendon have been met. 38 U.S.C. §§ 1151, 5103, 5103A (2012); 38 C.F.R. §§ 3.159, 3.361 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Entitlement to Compensation under 38 U.S.C. § 1151

I.  Legal Criteria

The Veteran seeks compensation under 38 U.S.C. § 1151 for additional disability of the right Achilles tendon as a result of Achilles tendon surgery performed by VA in July 2010 and September 2011.  See notice of disagreement of May 2013; VA Form 9 of August 2014.

Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service-connected.  For purposes of this section, a disability or death is a qualifying additional disability if (1) the disability or death was not the result of the veteran's willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by VA, and (3) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable.  See 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2017).

To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in a veteran's additional disability or death.  Merely showing that a veteran received care and has an additional disability does not establish cause.  See 38 C.F.R. § 3.361(c)(1) (2017).

Whether an event is reasonably foreseeable is based on what a reasonable health care provider would have foreseen.  See 38 C.F.R. § 3.361(d)(2) (2017); Schertz v. Shinseki, 26 Vet.App. 362, 368-69 (2013).

II.  Analysis

The Veteran underwent procedures at VA medical facilities in July 2010 and September 2011.  Retrocalcaneal exostectomy and Haglund's deformity repair were performed in July 2010.  In September 2011, the Veteran underwent an Achilles tendon debridement with a topaz coblation of the right Achilles tendon.

A May 2013 letter of Dr. R. O. (Director of Podiatric Research at a VA medical center) refers to the "failed" surgical treatment of the Veteran's right Achilles tendon and states that the Veteran continues to have pain in his right Achilles tendon area that is "related" to the surgeries of July 2010 and September 2011.

In January 2017, the Veteran underwent a VA examination for foot conditions.  In the examiner's opinion, "[T]he VA treatment in July 2010 and September 2011 caused additional disability, including pain and inflammation to [the] right Achilles tendon, but . . . this was not caused by VA carelessness, negligence, lack of proper skill, error in judgement or a similar instance of fault in furnishing this medical [sic] and was the result [of] an event that was not reasonably foreseeable."  The examiner further stated that, "due to events that were not reasonable foreseeable," the procedures failed to relieve the Veteran's symptoms.  The examiner did not specify which event or events had been unforeseeable.

There is no competent medical opinion of record that contradicts the finding of Dr. R. O. or the positive opinion of the January 2017 VA examiner.  Accordingly, the Board finds that the Veteran's additional disability of the right Achilles tendon was caused by VA surgical treatment and that the proximate cause of the additional disability was an event not reasonably foreseeable.  Entitlement to compensation under 38 U.S.C. § 1151 for additional disability of the right Achilles tendon is established.


ORDER

Entitlement to compensation under 38 U.S.C. § 1151 for additional right Achilles tendon disability is granted.


REMAND

The Veteran alleges that his current disability of bilateral Achilles tendonitis is a direct consequence of physical training, including marching and walking, while on active duty.  See Appellate Brief of September 2015.

The Veteran underwent a VA examination in January 2017.  The examiner offered a negative nexus opinion as to the Veteran's bilateral Achilles tendonitis.  The stated rationale was that "the medical records do not show any evidence of an event, disease or injury and/or treatment of any foot condition other than athlete's foot during the veteran's military service."

A March 1974 service treatment record (STR) notes the Veteran's report of athlete's foot and a foot callus.  It is also indicated by an earlier STR of November 1973, however, that the Veteran reported swelling of the ankles and "Twisted Ankle - April."  Because the VA examiner was apparently not aware of the latter STR, the nexus opinion is based upon an inaccurate factual premise and is therefore inadequate.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993).

The Board will remand for an addendum medical opinion that considers the Veteran's complete history of in-service symptoms.  See 38 C.F.R. § 19.9(a) (2017).

Accordingly, the case is REMANDED for the following action:

1. Undertake appropriate development to obtain, and associate with the record, any outstanding relevant private or VA treatment records relating to the Veteran's bilateral Achilles tendonitis.  All efforts to obtain such records should be documented in the record.

2. Refer the Veteran's virtual claims file to a qualified VA examiner for a medical opinion.  The examiner must note his/her review of the Veteran's claims file.  An additional examination of the Veteran must be scheduled if deemed necessary by the examiner.

The examiner must offer an opinion as to whether it is at least as likely as not (that is, a probability of at least 50 percent) that the Veteran's left and/or right Achilles tendonitis is caused or aggravated by the Veteran's service, to include walking, marching, and physical training during active duty service.

While review of the entire record is required, the examiner's discussion should include consideration of the Veteran's report of the onset and history of his Achilles tendonitis symptoms, and the November 1973 service treatment record noting the Veteran's report of a twisted ankle and swollen ankles.

The examiner must offer a rationale for any opinions expressed.  A discussion of the facts and medical principles involved would be of considerable assistance to the Board.

3. After completing the above development and any other development deemed warranted, readjudicate the claim.  If the benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and the requisite opportunity to respond before the case is returned to the Board.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
Donnie R. Hachey
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs