Citation Nr: 1821530	
Decision Date: 04/11/18    Archive Date: 04/19/18

DOCKET NO.  14-24 246	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Entitlement to compensation under 38 U.S.C. § 1151 for a right foot, ankle or heel disability, claimed as a result of steroid injections performed in August 1985 and November 1986 at a Department of Veterans Affairs (VA) medical facility in Mayaguez, Puerto Rico.

2. Entitlement to compensation under 38 U.S.C. § 1151 for hypertension, cataracts and/or thinning of bones and skin, claimed as a result of steroid injections performed in August 1985 and November 1986 at a VA medical facility in Mayaguez, Puerto Rico.


REPRESENTATION

Appellant represented by:  Disabled American Veterans


ATTORNEY FOR THE BOARD

Michael J. O'Connor, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1951 to November 1953.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico (Agency of Original Jurisdiction (AOJ)).

This matter was previously before the Board in August 2014 and July 2015, when it was remanded for further development. 

In May 2016, the Board denied a claim of entitlement to compensation under 38 U.S.C. § 1151 for a right foot, ankle or heel disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court).  

In August 2017, the parties agreed to a Joint Motion for Remand (JMR) before the Court. The Court found that the record indicated another claim for entitlement by the Veteran.  Specifically, the JMR specifically noted that the Veteran had asserted that he had hypertension as a result of VA treatment in administering steroid injections. In the motion, the Court vacated the prior decision and directed the Board to provide adequate reasons and bases for its' earlier decision to deny the claim. The JMR made no mention of prior arguments by the Veteran's representative regarding references to cataracts and/or thinning of bones and skin alleged to have been caused by the steroid injections. The Board has added the issue of entitlement to compensation under 38 U.S.C. § 1151 for hypertension, cataracts and/or thinning of bones and skin to this appeal.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (2012).

The issue of entitlement to compensation under 38 U.S.C. § 1151 for hypertension, cataracts and/or thinning of bones and skin is addressed the REMAND below and is REMANDED to the AOJ.


FINDING OF FACT

The steroid injections of the Veteran's right heel performed by VA are not shown to have resulted in additional disability of the right foot, ankle or heel.


CONCLUSION OF LAW

The criteria for compensation under 38 U.S.C. § 1151 for a right foot, ankle or heel disability have not been met. 38 U.S.C. §§ 1151, 5107 (2012); 38 C.F.R. §§ 3.102, 3.361 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Advise and Assist

The Board notes that VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction).

VA has also satisfied its duty to assist. This duty includes assisting with the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered regarding these claims, and all documents have been translated into the English language. VA provided examinations in July 2011, January 2013, and November 2014. The July 2011 VA examiner was not asked to provide an opinion regarding the Veteran's claim. Although the January 2013 VA examiner overlooked evidence in the claims file regarding the August 1985 steroid injection, the November 2014 VA examiner appears to have considered an accurate factual history regarding the Veteran's claim and provided sufficient rationale to support his opinion.

In August 2014, the Board remanded this matter so the AOJ could schedule the Veteran for a new VA examination and have an April 2012 statement from the Veteran translated from Spanish to English. The AOJ had the statement translated and scheduled the Veteran for the November 2014 VA examination noted above. 

In July 2015, the Board remanded this matter for a second time. The Board directed the AOJ to have documents submitted by the Veteran in April 2015 translated from Spanish to English. The AOJ translated these documents as requested. In an effort to assist the Veteran in the development of his claim, the Board also asked the AOJ to schedule the Veteran for a new examination to specifically address the findings of a February 1986 VA examiner, who noted a right tibialis lesion secondary to the steroid injection. The AOJ scheduled the examination as requested, but the Veteran refused to comply with examination. A claimant's cooperation is essential to the development of any claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). Claimants who fail to cooperate during VA examinations "subject them[selves] to the risk of an adverse adjudication based on an incomplete and underdeveloped record." Kowalski v. Nicholson, 19 Vet. App. 171, 181 (2005). See generally Olson v. Principi, 3 Vet. App. 480, 482-83 (1992) (financial hardship associated with traveling to a VA examination site not considered good cause for failure to appear).

Given the Veteran's refusal to cooperate in actual examination, in November 2017, the Board requested a VHA expert medical opinion regarding the Veteran's claim based upon review of the claims folder. The completed VHA opinion was provided to the Veteran on December 11, 2017. The Veteran submitted additional argument in the form of an Appellant's Response to Medical Expert Opinion and a separate statement in support of his claim. The Veteran's representative has not alleged inadequacy in the VHA opinion. The Veteran appears to argue that the VHA opinion is inadequate as he was not examined. However, the Veteran has not presented good cause for his prior failure to attend a scheduled VA examination and the Board supplemented the record with an opinion based on the record. Given the Veteran's refusal of actual examination, the Board finds there has been substantial compliance with its prior directives, see Stegall v. West, 11 Vet. App. 268 (1998), and that VA has complied with its duty to assist the Veteran in obtaining medical examination and opinion.

Compensation under 38 U.S.C. § 1151 for right foot, heel and/or ankle disability

In this case, the Veteran claims that two steroid injections in his right heel performed by VA resulted in additional disability. More specifically, the Veteran asserts he has a posterior nerve lesion with chronic calcification bursitis as a result of the injection. He reports that he initially was given an appointment for surgery, and was surprised when the surgical procedure involved a needle. He was advised that the injection had no side effects, and the doctor assured him that he had special training. For the first few months after the injection, his pain disappeared. However, he began to feel discomfort and an X-ray showed a large posterior spur of the right calcaneus. He was injected for a second time in an area that was painful. He asserts that VA used him a Guinea pig by injecting an extremely large dose directly into his Achilles which, by todays standards, are wrong. He further asserts that VA and covered up the beginning of his calcification by diagnosing him with chronic arthritis, and that Dr. H. lied. He further asserts that a prescription of Motrin caused him to bleed requiring a change of prescription to Sulindac.

38 U.S.C. § 1151 is VA's medical malpractice statute, which compensates claimants who suffer "qualifying additional disability" as a result of surgical, or other medical, treatment administered by VA. Such benefits are to be awarded in the same manner as if the "additional disability ... were service-connected." See 38 U.S.C. § 1151(a); see also Roberson v. Shinseki, 607 F.3d 809, 813 (Fed. Cir. 2010). 

The current provisions of 38 U.S.C. § 1151 make clear that compensation may only be awarded for a "qualifying additional disability" that 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 treatment, or by an event not reasonably foreseeable.

Title 38, United States Code § 1151 provides compensation in situations in which a claimant suffers an injury or an aggravation of an injury resulting in additional disability or death by reason of VA hospitalization, or medical or surgical treatment, and the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or the proximate cause of additional disability or death was an event which was not reasonably foreseeable. 

The regulations provide that, benefits under 38 U.S.C. § 1151(a) for claims for additional disability or death due to hospital care, medical or surgical treatment, examination, training and rehabilitation services, what is required is actual causation, not the result of continuance or the 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. The additional disability or death must not have been due to the failure to follow medical instructions. 38 C.F.R. § 3.361.

To determine whether additional disability exists within the meaning of 38 U.S.C. § 1151, 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 program upon which the claim is based is compared to his condition after such care, treatment, examination, services, or program has been completed.  Each body part or system involved is 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. 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, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran's additional disability and (i) that VA failed to exercise the degree of care that would be expected of a reasonable health care provider or (ii) that 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. 38 C.F.R. § 3.361(d)(1).

Finally, the determination of whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is to be based on what a reasonable health care provider would have foreseen. The event does not have to 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)(2). The regulation further provides that, 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).

The specific requirements of 38 U.S.C. § 1151 and its implementing regulations were addressed in a precedential decision by the United States Court of Appeals for the Federal Circuit (Federal Circuit). Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013).  Specifically, the Federal Circuit incorporated those provisions into a three-part test, whereby 1) a claimant must incur an additional disability that was not the result of his or her own willful misconduct; 2) the disability must have been caused by hospital care, medical or surgical treatment, or examination furnished by VA or in a VA facility; and 3) the proximate cause of the additional disability must be carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. Id. at 1377.

With respect to the first part of the Viegas test, VA determines whether a qualifying additional disability exists by comparing a claimant's condition immediately prior to undergoing medical or surgical treatment to his condition after such care has ceased. 38 C.F.R. § 3.361(b). The claimant then bears the burden of meeting the remaining parts of the test.

To prevail under the second Viegas element, the claimant must demonstrate a "causal connection" between his qualifying additional disability and the medical care that he received through VA. Merely showing that an additional disability arose in the wake of VA medical care is insufficient to establish such a connection. 38 C.F.R. § 3.361(c). Nevertheless, the Federal Circuit has emphasized that the claimant's injury does not have to be "directly" caused by the actual "provision" of medical care by VA personnel but, rather; may also be caused when an injury occurs in a VA facility because of VA negligence. See Viegas, 705 F.3d at 1378. 

To prevail under the third and final Viegas element, the claimant must demonstrate that his qualifying additional disability was proximately caused by VA's failure to exercise the degree of care expected of a reasonable health care provider, or to furnish the hospital care, medical treatment, or surgery, without his informed consent; or by an event not reasonably foreseeable.

Whether the proximate cause of a claimant'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).

Informed consent is the freely given consent that follows a careful explanation by the practitioner to the patient of the proposed diagnostic or therapeutic procedure or course of treatment. The practitioner must explain in language understandable to the patient the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. The patient must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion. The practitioner must advise if the proposed treatment is novel or unorthodox. The patient may withhold or revoke his or her consent at any time. 38 C.F.R. § 17.32(c).

To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of 38 C.F.R. § 17.32. Minor deviations from the requirements of 38 C.F.R. § 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 specified in 38 C.F.R. § 17.32(b), as in emergency situations.

The record shows the Veteran sought treatment for right foot/ankle (incorrectly noted as the left heel at times) pain on August 23, 1985. It was noted that he had a previous history of right ankle fracture. He had previously been diagnosed with bilateral tenosynovitis. An X-ray examination that same day was interpreted as showing a "large" posterior spur of the right calcaneus by the radiologist. Examination noted tenderness at the Achilles insertion. The Veteran was initially prescribed Motrin and admitted to outpatient (OPT) surgery for calcaneal spur. On August 24, 1985, the Veteran reported to the OPT surgery clinic. It was noted that the Veteran was a jogger. Physical examination was significant for tenderness to the Achilles tendon. The Veteran was given a steroid injection, and prescribed Motrin. There was a reference "X-ray revealed a small spur on his right heel. Treated with steroid injection." The Veteran signed a standard, generic consent form witnessed by a nurse for a steroid injection of the right heel. In September 1985, the Veteran was described as having shown "marked improvement" at a follow-up appointment, and was discharged from the surgery clinic.

The Veteran underwent VA examination in February 1986 in relation to a claim for pension benefits. The Veteran reported right calcaneus numbness and atrophy. An orthopedic examination report found moderate atrophy of the peroneus muscles of the right leg and offered a diagnosis of right tibialis nerve lesion secondary to steroid injection. A psychiatric examination included testing suggestive of atypical organic brain syndrome. It was noted that it was difficult to obtain an organized history from the Veteran due to his inability to recall adequately many events that had happened to him in the past. He was diagnosed with organic brain syndrome with delusions noting that the Veteran was in poor contact with reality.

Thereafter, in May and November 1986, the Veteran sought additional treatment for right posterior foot pain. A November 1986 X-ray was interpreted as showing a "large" spur of the right calcaneus by the radiologist who interpreted the X-ray on August 23, 1985. The Veteran was prescribed a heel support.

An August 1994 X-ray examination of the left heel was interpreted as showing posterior and plantar spurs of the left calcaneus with a radiolucent area in the posterior aspect of the left calcaneus of uncertain significance with a notation that a lytic lesion or early osteomyelitic change may give a similar appearance.

A November 2001 VA treatment record reflected a diagnosis of bilateral Achilles tendinitis.

A July 2011 VA examiner obtained history from the Veteran of a VA performed steroid injection to treat a bone spur of the right heel which initially decreased his pain. However, approximately 2 years later, he developed increased discomfort with stiffness in the right heel cord to the point having loss of balance due to inability to press firmly on his right foot. Physical examination was significant for painful motion, tenderness, weakness and abnormal weight bearing of the right foot. There was deformity and enduration at the distal Achilles tendon with no defect palpated. X-ray examination was interpreted as showing posterior joint space narrowing at the talotibial joint as well as large and coarse changes of enthesopathy at the distal Achilles tendon measuring at least 7 cm. long and 1.4 cm. AP (otherwise described as extensive changes of enthesopathy at the Achilles tendon). The examiner diagnosed large and coarse changes of enthesopathy at the distal Achilles tendon with contracture.

A December 2012 VA clinic record included findings of right ankle pain with motion, adequate muscle tone and observation of Achilles tendon nodules. There was no gross motor or sensory deficit, and the lower extremities had 5/5 strength.



A VA examiner in January 2013, after a review of the record, provided the following opinion:

There is no evidence in the claim folder or electronic medical record which demonstrates the patient had a steroid infiltration to the lower leg (achilles tendon). No procedure note or progress note saying a doctor or hospital personnel infiltrated the lower leg. There is only complaints of the patient saying he was infiltered with steroid. With the available evidence it is [n]ot certain if such a procedure was done. The examination of 7-6-2011 does not diagnose posterior nerve lesion with chronic calcification bursitis, rather Large and coarse changes of enthesopathy at distal achilles tendon with contracture. The later diagnosis would not at least as likely as not be the expected result of a steroid infiltration to the distal lower leg but again I did not find evidence the infiltration did occur in VA or any other place.

The Veteran underwent additional VA examination November 2014. The examiner offered a diagnosis of right posterior ankle pain secondary to right Achilles tendinopathy (enthesopathy at distal Achilles tendon with contracture). The examiner commented that the Veteran provided poor cooperation by overreacting during physical examination. The Veteran also reported distal bilateral leg and plantar foot tingling pain sensation with muscle cramps. Neurologic examination demonstrated general muscle atrophy, sensory deficit of the lower extremities, severe hair loss of the lower extremities and very dry skin with periphervascular changes. A nerve conduction velocity study was interpreted as being compatible with bilateral, moderate sensory motor, mostly axonal, peripheral neuropathy. Following review of the claims folder, the examiner provided the following opinion:

1- CPRS AND VBMS WERE REVIEWED.  VETERAN WAS RELEASED FROM ACTIVE SERVICENOV/20/1950.
2- THE C&P EXAMINATION PERFORMED ON JUL/6/2011 DOES NOT DIAGNOSED POSTERIOR NERVELESION WITH CHRONIC CALCIFICATION BURSITIS. INSTEAD; HE WAS DIAGNOSED WITH RIGHT DISTAL ACHILLES TENDON ENTHESOPATHY WITH CONTRACTURE. MEDICAL OPINION PROVIDED ON THAT EVALUATION WAS THAT RIGHT DISTAL ACHILLES TENDON ENTHESOPATHY WITH CONTRACTURE WOULD NOT AT LEAST AS LIKELY AS NOT BE EXPECTED TO RESULT FROM ASTEROID INFILTRAION TO THE LEFT HEEL (DISTAL LOWER LEG).
A- THERE IS EVIEDNCE IN TODAYS EXAMINATION OF RIGHT DISTAL ACHILLES TENDON ENTHESOPATHY WITH CONTRACTURE AND LOWER EXTREMITIES MIXED MOTOR ANDSENSORY PERIPHERAL NEUROPATHY. THERE IS NO OBJECTIVE EVIDENCE BY ELECTRODIAGNOSITC STUDY OF RIGHT POSTERIOR TIBIALIS NERVE INJURY (MONONEUROPATHY) AT THIS TIME.
B- LOWER EXTREMITIES PERIPHERAL NEUROPATHY IS LESS LIKELY THAN NOT CAUSED BYOR RESULT FROM STEROID INJECTION ON THE RIGHT HEEL IN AUG/1985. THERE IS NO EVIDENCE ON MEDICAL LITERATER [sic] TO SUPPORT THAT LOWER EXTREMITIES PERIPHERAL NEUROPATHY IS RELATED TO LOCAL STEORID INJECTION DONE LONG TIME AGO.-SOMETIMES PERIPEHRAL NEUROPATHY SEEMS TO HAPPEN FOR NO PARTICULAR REASON.TYPICALLY; IT OCCURS IN PEAOPLE OVER 60 YEARS; PROGRESSES SLOWLY AND IT CAN BEVERY DISRUPTIVE TO SOMEONE'S NORMAL LIFE AND LIFESTYLE.
- RIGHT DISTAL ACHILLES TENDON ENTHESOPATHY WITH CONTRACTURE IS LESS LIKLEY THAN NOT CAUSED BY OR RESULT FROM STEROID INJECTION ON THE RIGHT HEEL IN AUG/1985.
x PROGRESS NOTE (8/29/1985) ---> REPORTS THAT VETERAN WAS A JOGGER. x PROGRESS NOTE (9/12/1985)/FOLLOW-UP AFTER INFILTRATION ---> MARKED IMPORVEMENT FOR WHICH HE WAS DISCHARGED FROM CLINIC. x RIGHT ANKLE AND HEEL X-RAY (11/12/1986) ---> LARGE POSTERIOR SPUR OFTHE RIGHT CALCANEUS.  OTHERWISE, ESSENTIALLY NEGATIVE RIGHT ANKLE AND HEEL.
- IT IS WORTH TO MENTIONED THAT THE ACHILLES TENDON (THE LARGEST TENDON INTHE BODY), IS VULNERABLE TO INJURY BECAUSE OF IT LIMITED BLODD [sic] SUPPLY AND THE COMBINATION OF FORCES TO WHICH IT IS SUBJECTED. AGING AND INCREASED ACTIVITY (PARTICULARLY VELOCITY SPORTS) INCREASED THE CHANGE OF INJURY TO THE ACHILLES TENDON (VETERAN USED TO BE A JOGGER FOR LONG TIME "AS SEEN ON MILITARY MEDICALRECORDS"). I CONSIDER THAT RIGHT DISTAL ACHILLES TENDON ENTHESOPATHY WITH CONTRACTURE IS AT LEAST AS LIKELY AS NOT RELATED TO MULTIPLE MICROTRAUMA SECONDARY TO HIS HOBBY OF RUNNING (AS REPORTED IN ON MILITARY MEDICAL RECORDS).
3- THERE IS NO ELECTROGIAGNOSTIC EVIDENCE OF MONONEUROPATHY IN THE RIGHT LOWEREXTREMITY. VETERAN WAS FOUND WITH MIXED MOTOR AND SENSORY PERIPHERAL NEUROPATHYON LOWER EXTREMITIES BY MOST RECENT ELECTRODIAGNOSTIC STUDY. NO EVIDENCE ON MEDICAL LITERATURE THAT MENTIONED THAT ONE CAN DEVELOPED MIXED MOTOR AND SENSORY PERIPHERAL NEUROPATHY DUE TO ONLY ONE STEROID LOCAL INFILTRATION ON THE RIGHT HEEL.

Finally, the record was reviewed by a VHA internist and clinician. The examiner reviewed the circumstances of the Veteran's VA treatment as well as the Veteran's contentions, which included a report of a second steroid injection which was reported by the Veteran. With respect to the right heel, the examiner provided the following opinion regarding the claimed right tibialis nerve lesion:

On the same examination, under; Musculoskeletal System it states Normal ROM'" abbreviation for Range of Movement". But then in a separate hand written note which is not very clear it states Posterior tibialis nerve lesion 2ry to steroid injection. This later conclusion was not clear how the examiner was able to conclude given the fact that many years later per a VA examination dated 2014 there was no evidence on the nerve conduction studies that the patient had any mononeuropathy and his neuropathy is bilateral involving both lower extremities.

The Board finds, by a preponderance of the evidence, that the steroid injections of the Veteran's right heel performed by VA in 1985 and reportedly in 1986 are not shown to have resulted in additional disability of the right foot, heel and/or ankle. Factually, the record reflects that the Veteran presented to VA on August 23, 1985 with a prior history of right ankle fracture and diagnosis of bilateral tenosynovitis. He was a jogger. Examination findings were significant for tenderness at the Achilles insertion and X-ray examination was interpreted as showing a "large" posterior spur of the right calcaneus by a radiologist. The Veteran underwent a steroid injection the next day. The exact steroid used and dosage amount are not documented, and there is a reference to the X-ray showing a small spur. The Veteran was noted to have "marked improvement" on a follow-up appointment in September 1985. The Veteran does not dispute initial improvement of his symptoms.

However, in February 1986 in relation to a claim for pension benefits, the Veteran was found to have moderate atrophy of the peroneus muscles right leg and was provided a diagnosis of right tibialis nerve lesion secondary to steroid injection. In May and November 1986, the Veteran sought additional treatment for right posterior foot pain. A November 1986 X-ray was again interpreted as showing a large spur of the right calcaneus with no comment of an interval increase in size by the radiologist who interpreted the X-ray on August 23, 1985. The Veteran was prescribed a heel support. The Veteran reports being given another steroid injection.

The record includes opinions for and against a finding of additional disability caused by the VA performed steroid injections. The evidence against includes two VA physical examinations of the Veteran in July 2011and November 2014, where the examiners both diagnosed enthesopathy at the right distal Achilles tendon with contracture. The November 2014 VA examiner conducted a neurologic examination which showed general muscle atrophy, sensory deficit, severe hair loss of the lower extremities and very dry skin with periphervascular changes of both lower extremities. A nerve conduction velocity study was interpreted as being compatible with bilateral, moderate sensory motor, mostly axonal, peripheral neuropathy. The examiner correlated the physical examination findings and electrodiagnostic testing as not supporting a right tibialis nerve injury. The examiner opined that the enthesopathy at the right distal Achilles tendon with contracture was less likely than not caused by the steroid injection performed in August 1985 reasoning that the Veteran's age and history of jogging more likely made him vulnerable to an Achilles enthesopathy. The examiner also opined that the Veteran's bilateral lower extremity neuropathy was less likely caused by the steroid injection as there was no medical literature to support such a correlation, and that such disorder typically occurred in people over 60 and could happen for no reason.

Additionally, the 2017 VHA examiner considered the Veteran's report of a second steroid injection and concurred that the steroid injections did not result in a posterior tibialis lesion based upon examination findings and the 2014 electrodiagnostic testing.

On the other hand, the record includes the February 1986 VA examiner's assessment of posterior tibialis nerve lesion secondary to steroid injection which included a physical finding of moderate atrophy of the peroneus muscles of the right leg.

With respect to the finding of posterior tibialis nerve lesion secondary to steroid injection, the Board finds that the preponderance of the evidence establishes that this was a misdiagnosis. In this respect, the February 1986 diagnosis holds some probative value as it was based on examination of the Veteran. However, this is the lone diagnosis contained in an extensive record and later electrodiagnostic testing did not confirm a posterior tibialis nerve lesion. Rather, electrodiagnostic testing was compatible with bilateral, sensory motor, mostly axonal, peripheral neuropathy. Additionally, physical examination in November 2014 found atrophy and neurologic impairment in both lower extremities and it is not clear whether the February 1986 examiner fully considered whether similar findings were present in the Veteran's left lower extremity. Significantly, the 2014 VA examiner did considered all the available evidence - including the February 1986 diagnosis - and concluded that the evidence did not support a diagnosis of a posterior tibialis nerve lesion. The 2017 VHA examiner concurred in this assessment. The Board places greater probative weight to the opinions of the 2014 VA examiner and VHA examiners both of whom concluded that the Veteran does not manifest a posterior tibialis nerve lesion as these assessments were was based on a full review of the record, including the records pertaining to the steroid injections and electrodiagnostic testing, which were not considered by the February 1986 examiner.

With respect to additional disability of other than posterior tibialis nerve lesion, the only evidence tending to support a finding of additional disability concerns the Veteran's own self-diagnoses and opinions. The Veteran is competent to discuss his history and observable symptomatology but he does not possess the requisite skill or training to address more complex medical questions such as etiology or causation for his present disability such as a steroid injection causing permanent additional disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).

The Veteran is competent to recall conversations and opinions provided by various physicians. He asserts that the physician who performed the steroid injection admitted that permanent calcification in his right foot was the result of the steroid injection. He states that this physician described his calcaneal spur as "small" but it became "large" after the injection. He also asserts that the physician used him as a guinea pig by administering more steroid than necessary, and then covering up the situation by diagnosing him with arthritis. He directly asserts that the VA physician lied.

Additionally, the Veteran asserts that, according to Dr. J.L., a steroid should not be injected directly into the Achilles because it causes calcification. He further noted that only an amount of 10 mg. steroid injection was required to extirp a small spur, and that regulations in 1999 precluded an injection exceeding 99 mg. He stated that Dr. J.L. had concluded that malpractice had been performed. In another statement, the Veteran recalls that Dr. P.C., stated that his symptoms were related to the injection - "When I was told that I had Chronic Arthritis. Dr. C. told me I haven't showed any symptom of that and what I have the poison injected." 

The Veteran's recollections have some probative value as he is reporting opinions/statements made by individuals with competence to speak to the subject matter in question. However, his recollections are not deemed credible. In this respect, the Veteran's is presenting hearsay evidence which, while acceptable as evidence for VA compensation claims, are nonetheless recognized in the judicial system as being inherently unreliable and inadmissible unless an exception applies. The record does not include any documentation of the purported opinions by the VA physician, Drs. J.L., or Dr. P.C. so the precise words, comments and reasoning cannot be known. Additionally, it is not known the information available to Drs. J.L. and/or P.C. to allow them to conclude that an inappropriate amount of steroid was injected (the amount of steroid being unknown according to all available records), that malpractice had been committed, or that the Veteran had been injected with a "poison." As for the appropriateness of injecting a steroid into the Achilles tendon as it caused calcification, the record includes written opinion from the November 2014 VA examiner that the Veteran did not incur additional disability of the right heel as a result of the steroid injection.  The Board places greater probative weight to the VA examiner's opinion as the Board can ascertain from this report the reasoning supporting this conclusion.

With respect to the "admissions" of the VA physician, the Board finds no evidence of record supporting the Veteran's belief that he was used as a guinea pig, no comment in the record from this physician or any physician of record of complications or mistakes, or efforts to cover up a mistake. The Veteran appears to reference being prescribed Motrin after the steroid injection as an attempt to cover up malpractice by treating him for arthritis. Notably, the Veteran had been prescribed Motrin before the first steroid injection. Overall, there is a lack of any evidence suggesting any reason why the VA physician admitted to committing malpractice, used him as a Guinea pig or more importantly "lied" which is not compatible with his professional responsibilities. The record includes medical opinion that, as of February 1986, the Veteran held a diagnosis of organic brain syndrome with delusions noting that he was unable to recall adequately many events that had happened to him in the past, and was in poor contact with reality. Thus, the Veteran is medically shown to have impaired memory. The Board finds the Veteran's allegations in this regard are not credible.

With respect to the reference of a "small" spur becoming larger after the August 1985 steroid injection, the record contains an X-ray report performed the day before the steroid injection which was described as a "large" calcaneal spur by the radiologist. The same radiologist described the calcaneal spur in the same language in November 1986. Any subjective description of a "small" sized spur in and of itself does not prove additional disability caused by the steroid injection particularly given that the same radiologist who interpreted X-rays before and after the first steroid injection did not describe any increased size of the calcaneal spur.

The Veteran has also presented literature concerning the potential side effects of cortisone shots to include weakening of joint ligaments, cartilage thinning, infections, and damage to the bones in the biggest articulations. The medical treatise articles provide some evidence in support of the claim. However, the probative value of these materials is lessened by the fact that they do not speak to the specific facts of this case. The Board finds that the 2014 VA opinion and 2017 VHA opinion hold greater probative weight as they are opinions based upon the particular facts of this case.

Thus, the preponderance of the evidence establishes that the steroid injections of the Veteran's right heel performed by VA in 1985 and reportedly in 1986 are not shown to have resulted in additional disability of the right foot, heel and/or ankle. In the absence of additional disability, the potential issues of negligence and informed consent are immaterial. As such, the Board finds that compensation under 38 U.S.C. § 1151 for right foot disability is not warranted. There is no doubt of material fact to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b).


ORDER

The claim of entitlement to compensation under 38 U.S.C. § 1151 for a right foot, ankle or heel disability, claimed as a result of steroid injections performed in August 1985 and November 1986 at a VA medical facility in Mayaguez, Puerto Rico is denied.
REMAND

As noted in the INTRODUCTION, the parties to the August 2017 JMR concluded that the 1151 claim included the Veteran's assertion that he had hypertension as a result of VA treatment in administering steroid injections. It is unclear why the parties did not include the allegations of cataracts and/or thinning of bones and skin also alleged to have been caused by the steroid injections. The Board has added the issue of entitlement to compensation under 38 U.S.C. § 1151 for hypertension, cataracts and/or thinning of bones and skin to this appeal, and it would be potentially prejudicial to the Veteran in adjudicating this aspect of the claim without AOJ consideration in the first instance.

As the Veteran has submitted some medical treatise information in support of his claim, the Board also finds that additional opinion is warranted on the issues of cataracts and/or thinning of bones and skin.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Forward the claims folder to an appropriate examiner for opinion addressing the following:

(A) Whether it is as likely as not (a 50 percent or greater probability) that the Veteran manifests additional disability of cataracts, and/or thinning of bones and skin as a result of VA performed steroid injections to the right heel in August 1985 and November 1986?

(B) If (and only if) additional disability is found to have been caused by the steroid injection(s), the examiner must address the following:

   (1.) Whether any additional disability was caused by carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA in administering the injection(s); or 

   (2.) If there was no fault on the part of VA in administering the steroid injection, whether any additional disability caused by the injection(s) was due to an event not reasonably foreseeable. 

The examiner must review the VA treatment records documenting the August 1985 steroid injection, the reported steroid injection in November 1986 which should be accepted as true, and the medical treatise articles discussing potential side effects of cortisone shots which include cataracts, and/or thinning of bones and skin.

2. Finally, after completing any other indicated development, readjudicate the claim on the merits. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC). 

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C. §§ 5109B, 7112 (2012).


______________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs