Citation Nr: 1824949 Decision Date: 04/24/18 Archive Date: 05/03/18 DOCKET NO. 08-35 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to compensation benefits under 38 U.S.C. § 1151 for a right great toe disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel INTRODUCTION The Veteran served in the United States Navy with active duty from April 1963 to February 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In August 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. The Board again notes that at this hearing, the Veteran clarified that his March 2005 service connection claim for a left toe disorder (which has since been withdrawn) was intended to instead be a claim for benefits under 38 U.S.C. § 1151. To date, the RO has not taken any steps to adjudicate to this claim, and it is again referred to the RO for appropriate action. Additionally, the Veteran also testified at an informal conference at the RO and a transcript of that hearing has also been associated with the record. This claim was most recently before the Board in March 2016, at which time it was remanded for further development, to include obtaining a consent form from the Veteran's September 2005 bunionectomy. As substantial compliance with the Board's most recent March 2016 remand directives has been completed, the claim has now returned to the Board for further appellate action. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The surgical treatment provided in relation to the Veteran's right great toe disorder did not result in the Veteran incurring any additional disability, nor is the Veteran's right great toe disability a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault as a result of VA hospital treatment, or the result of an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under the provisions of 38 U.S.C.§ 1151 for a right great toe disability have not been met. 38 U.S.C. §§ 1151, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.361 (2017); VAOGCPREC 05-01 (February 5, 2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) ; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Under 38 U.S.C. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. 38 U.S.C. § 5103(a). Here, a letter sent to the Veteran in August 2006, plus additional development letters, satisfied the VCAA notice requirement for his claim for entitlement to compensation under 38 U.S.C. § 1151 because they provided the Veteran with notice that fulfills the provisions of 38 U.S.C. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess. While the Veteran may not have been provided with adequate notice before all the claims were adjudicated, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claims in the February 2018 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2016) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the August 2013 videoconference hearing, the appellant and her spouse were assisted at the hearing by an accredited representative from Disabled American Veterans. The representative and the VLJ asked questions to determine the circumstances surrounding his current right great toe disability. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. Overall, the hearing focused on the elements necessary to substantiate the claim. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). VA also has a duty to assist the Veteran in the development of his claims. This duty includes assisting the Veteran in the procurement of pertinent treatment records, and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the claims has been obtained. The Veteran's service treatment records, and post-service VA and private treatment records have been obtained. He has not indicated that there are any additional records that VA should seek to obtain on his behalf. The Veteran was most recently provided an examination in this matter in March 2014. A review of the examination reports shows that they contain sufficient clinical findings and discussion of the history and features of the disabilities to constitute an adequate medical examination. Barr v. Nicholson, 21 Vet. App. 303 (2007). As the Veteran has not identified any additional evidence pertinent to his claims, and as there are no additional records to obtain, the Board concludes that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103 (a), or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of his claims. II. Entitlement to Compensation Pursuant to 38 U.S.C. § 1151 The Veteran and his representative contend that the Veteran is entitled to 38 U.S.C. § 1151 benefits because he continued to have pain in his great right toe following several surgeries which took place at VA facilities by VA personnel. The Veteran's claim for 38 U.S.C.§ 1151 was filed after October 1, 1997, which requires that entitlement to benefits for any injury or disease resulting from VA treatment be established by proof of fault or accident on the part of VA. 38 U.S.C. § 1151; VAOPGCPREC 01-99 (February 16, 1999). In such cases, compensation shall be awarded for a qualifying additional disability in the same manner as if such additional disability or death was service-connected. A disability is a qualifying additional disability if it was not the result of the Veteran's willful misconduct and (1) the disability was caused by hospital care, medical or surgical treatment, or examination, furnished under any law administered by the Secretary, and the proximate cause of the disability 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. 38 U.S.C. § 1151. To determine whether additional disability exists within the meaning of § 1151, the Veteran's condition immediately prior to 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 is compared to his or her condition after such care, treatment, examination, services, or program has been completed. Each body part or system involved in considered separately. 38 C.F.R. § 3.361(b). To establish causation, evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability. 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). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Additional disability caused by a veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 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, it must be shown that the hospital care, medical or surgical treatment, or examination 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 hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care provides substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (i.e., given orally or in writing) or implied under the circumstances as specified in § 17.32(b) of this chapter, as in emergency situations. Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim 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. 38 C.F.R. § 3.361(d). 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 § 17.32 of this chapter. In the present case, the Veteran first was seen for significant pain in his great right toe during an April 2005 podiatry appointment where he stated that the bunion on his great toe had been present for years and was getting worse. It was determined that a cheilectomy would be the best course of treatment. Accordingly, the Veteran was scheduled for surgery in August 2005. Following the surgery, there are several post-operative notes in which it was noted that the Veteran's surgery went as planned and was healing well with no complications. See, August 2005 operation summary, post-service treatment records dated September 2005. In April 2006, the Veteran reported pain in the same region on his great right toe and a revisional procedure was discussed where the plan would be to shorten the first metatarsal and insert hardware for stabilization. In June 2006, the Veteran underwent a Mitchell bunionectomy with k-wire diastasis and chrondroplasty. The Veteran's surgery again went as planned with no noted complications. See, June 2006 post-operative note, July 2005 post-service treatment records. Later in July 2006, the Veteran reported to the podiatry clinic stating that he had dropped a bottle of lotion which hit the hardware in his great right toe, causing significant pain. The pain did not subside over the month so the Veteran was scheduled to undergo a minor procedure for the partial removal of hardware. The surgery was successful and with had no noted complications. Following the procedure, the Veteran continued to endorse pain, but it was noted that the incision sites were healing without complication and with satisfactory progress. See, post-service treatment records dated July 2006, August 2006. In September 2006, the Veteran reported that he dropped a book on his great big toe and was now having complications with the remainder of the hardware at the area of trauma. The podiatrist determined that the Veteran was in need of surgical intervention due to the trauma that the required surgery would result in the removal of the remainder of the hardware. Again, the surgery went as planned and without complications. Following the surgery, the Veteran continued to endorse pain but it was noted that the site was healing as expected, without major set-backs and without any signs of infection. See, post-service treatment records dated September 2006, October 2006, and November 2006. The Veteran has consistently reported continuing pain in his great right toe following the surgeries. At his August 2013 videoconference, the Veteran testified that he believed that the surgery was done wrong, resulting in the continuing pain and disfigurement of his great right toe. While the Board acknowledges the Veteran's belief that his surgeries were performed incorrectly, this is a medical determination and cannot be based off lay testimony. Layno v. Brown, 6 Vet. App. 469 (1994). As nothing in the record indicates that the Veteran has received any medical training or credentials needed to determine whether or not a surgery was performed correctly, the Board has given low probative weight to the Veteran's statements. The Veteran was afforded VA examinations in connection with is claim in February and March 2014. The February 2014 VA examination focused on whether or not the Veteran's great right toe injury was incurred in or as a result of his active duty service and the March 2014 VA examination focused on the Veteran's entitlement to compensation under 38 U.S.C.§ 1151. During both examinations, it was reported that the Veteran had a current diagnosis of hallux valgus, which is the same diagnosis that he carried prior to his surgeries. See, February and March 2014 VA examinations. In this regard, the Board notes that nothing in the clinical evidence of record indicates that the Veteran has incurred an additional injury as a result of VA medical treatment, but is merely suffering from the same diagnosis and same symptomology as before his surgeries. Accordingly, the Board finds that the preponderance of the evidence demonstrates that the Veteran is not entitled to compensation under 38 U.S.C. § 1151 for additional great right toe disability due to medical treatment that occurred in a VA facility. However, even if the Board were to find that there was additional disability caused by medical treatment provided by VA, the Veteran's claim still fails because it cannot be shown that the proximate cause of the disability was caused by hospital care, medical or surgical treatment, or examination, furnished under any law administered by the Secretary, and the proximate cause of the disability 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. 38 U.S.C. § 1151. In this regard, the Board notes that there is documented informed consent for each of the Veteran's surgeries which clearly outline the possible risks associated with the surgery. Those risks included delayed wound healing, infection, nerve and/or artery damage, need for more surgery, decreased sensation or increased pain and problems with anesthesia. Additionally, no guarantees as to outcome were given and the Veteran wished to continue to proceed with each of the surgeries. As such, the Board finds that there is no basis to grant the Veteran's claim based on a lack of informed consent. As to whether the continued pain in the great right toe was a reasonably foreseeable complication of the Veteran's surgeries on his great right toe, the risk is explicitly noted in the informed consent provided to the Veteran. Additionally, the March 2014 VA examination, the VA examiner concluded that there "is no evidence in the record that the Veteran's great right toe disorder was due to 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." The examiner further concluded that the Veteran's symptoms are "known potential sequelae of surgical procedures and are not indicative of carelessness, negligence, lack of proper skill, or error in judgment." See, March 2014 VA examination. As the medical opinion was furnished following an in-person examination of the Veteran, and a thorough review of his medical record, the Board has assigned this opinion significant probative value. The Board also notes that this opinion is not contradicted with any other evidence of record. The Board is sympathetic to the Veteran's reports of continuing pain in his great right toe, however, the preponderance of the probative evidence of record is against a finding that his current great right toe disability is due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in furnished care of treatment by VA medical professionals, were not reasonably foreseeable risk of the surgery, or that he was not fully informed as to the nature of the surgery, potential risks, and alternatives. As such, the criteria for entitlement to compensation under the disability was caused by hospital care, medical or surgical treatment, or examination, furnished under any law administered by the Secretary, and the proximate cause of the disability 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. 38 U.S.C. § 1151 have not been met. ORDER Compensation pursuant to the provisions 38 U.S.C. § 1151 for right great toe disability is denied. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs