Citation Nr: 19124841 Decision Date: 04/03/19 Archive Date: 04/03/19 DOCKET NO. 17-06 303 DATE: April 3, 2019 ORDER Entitlement to service connection under 38 U.S.C. § 1151 for bilateral leg amputation is denied. FINDING OF FACT Bilateral leg amputation in August 2007 did not result from faulty VA medical treatment. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for bilateral leg amputation have not been met. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.361 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to January 1973. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of an October 2009 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO) which, in relevant part, denied an October 2008 service connection claim filed by the Veteran. The Veteran died in January 2009. The appellant is his surviving spouse. In March 2009, she claimed entitlement to benefits related to the Veteran’s death. In January 2019, the Board remanded this appeal for additional medical inquiry. The case is again before the Board for appellate consideration. Service Connection The appellant claims that faulty in-patient medical care at a VA hospital led to the Veteran falling and fracturing a leg, which then led to leg disorders culminating in a bilateral leg amputation which was performed in August 2007. The appellant continues the Veteran’s October 2008 claim that service connection should be awarded under 38 U.S.C. § 1151 for the amputations and residual disability. When a veteran suffers additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death was service-connected. 38 U.S.C. § 1151 (2012); 38 C.F.R. §§ 3.358, 3.361 (2018). The claimant must show some degree of fault, and more specifically, that the proximate cause of disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. Merely showing that a veteran received care, treatment, or examination and that that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). 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 VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, that VA furnished the hospital care, medical or surgical treatment, or examination without the veteran’s informed consent. 38 C.F.R. § 3.361(d)(1). In this matter, the evidence demonstrates clearly that the Veteran experienced an additional disability from the August 2007 amputations. However, an award of service connection under 38 U.S.C. § 1151 is unwarranted. The preponderance of the evidence of record is against the claim that the leg amputations were due to faulty VA care. Further, no evidence indicates that the amputations were done without consent, or that the disability resulting from the amputations was not reasonably foreseeable. The record contains three medical opinions evaluating the VA medical care the Veteran received in the years prior to his death. The opinions are dated in October 2009, November 2016, and January 2019. Each of these opinions counters the claim here. However, as noted in the January 2019 remand, the October 2009 opinion is not supported by a rationale, and is therefore inadequate. Further, the November 2016 opinion is not sufficiently explained with respect to the issue here. As such, these two opinions will not be relied on in this decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that once VA undertakes an examination, an adequate one must be produced). The January 2019 opinion is of probative value. In the opinion, the examiner indicated that it was unlikely that bilateral leg amputations were related to “any form” of carelessness, negligence, lack of proper skill, error in judgement or similar instance of fault or were due to an event not reasonably foreseeable. The examiner indicated that the amputations were a medically necessary procedure to treat bilateral leg gangrene resulting from the confluence of many problems and from the Veteran’s “morbid obesity and his chronic medical condition.” The chronic medical condition included smoking, several nonservice-connected disorders such as diabetes mellitus type 2 (diabetes), femur fracture, leg ulcers, anemia, end-stage renal failure, heart failure, CAD, peripheral vascular disease with peripheral neuropathy, and medical non-compliance. The appellant asserts that the amputations resulted from negligent VA care prior to, and following, the fall and leg fracture. The record indicates that the Veteran used a VA hospital bathroom on the evening of January 2, 2007 and indicates that he fell and fractured his femur while attempting to stand from the toilet. VA treatment records indicate that the Veteran reported difficulty standing from the toilet due to numbness in his legs. The appellant asserts that the fall and fracture were a result of the failure of VA hospital personnel to respond to the Veteran’s requests for assistance to use the bathroom, were a result of a defective walker with which the Veteran transported himself to the bathroom and relied on in attempting to stand from the toilet, and were a result of inertia related to overmedication with morphine. The appellant also asserts that subsequent treatment led to the development of the gangrene that necessitated the amputations. She asserts that non-surgical repair of the femur fracture was faulty and that gangrene developed because of insufficient insulin treatment for diabetes, because of Clostridium difficile and MRSA contracted by the Veteran due to unsanitary hospital conditions, because of the delay in the administration of antibiotics, because of faulty treatment of gangrenous sores, and because of premature discharge from the hospital. In the January 2019 opinion, the examiner noted the fall but attributed it not to “a defective walker as alleged” or to any other alleged reason, but to physical limitations caused by complications from nonservice-connected diabetes and kidney disease – i.e., “neuropathic and peripheral vascular disease[.]” Further, the examiner found no fault with the subsequent treatment of the leg fracture. “Given all of his co-morbidities, he was a high risk for surgery therefore it was decided to use a splint for the leg and treat the fracture conservatively.” The examiner stated that the leg problems nevertheless continued as they had prior to the fracture, with severe gangrene necessitating the amputations. The examiner stated that the Veteran received proper treatment to debride and treat his wounds. But the examiner indicated that the non-healing severe gangrenous sores (again, the result of multiple co-morbidities) required bilateral lower limb amputation to save the Veteran’s life. The examiner emphasized that the cause of the gangrene and consequent amputations was not the fall, the fracture, or the treatment for the fracture, but rather the complications related to diabetes, kidney disease, peripheral vascular disease, and peripheral neuropathy. The examiner emphasized that the Veteran’s general medical health, his multiple co-morbidities, his unhealthy lifestyle, and his medical non-compliance each factored into the leg problems leading to the amputations. VA treatment records corroborate the January 2019 examiner’s conclusions. These records document that the Veteran had significant bilateral leg problems prior to the January 2007 fall and leg fracture, to include bilateral swelling, weeping edema, ulcers, necrotic tissue, and lower extremity cellulitis treated in December 2006. The records show that the Veteran was hospitalized in December 2006 because of these lower extremity problems. These records undermine the notion that the gangrene worsened due to premature hospital discharge – the Veteran was treated as an inpatient for most of the period from admission for leg problems in December 2006 to December 2007, almost one year after the fall and leg fracture and worsening gangrene, and several months after the amputations. And these records undermine the notion that an over dosage of morphine led to the fall – the VA treatment records indicate that the Veteran did not receive morphine treatment on January 1, 2007, or in the morning of the fall on January 2, 2007. The record further indicates that the Veteran understood the severity of his health in August 2007 and consented to the amputations as necessary to save his life. Neither the Veteran nor the appellant has asserted otherwise. Indeed, in her January 2017 substantive appeal, the appellant indicated her belief that the amputations were necessary to save the Veteran’s life. The January 2019 VA examiner found the amputations a medically necessary procedure to treat the bilateral leg gangrene that resulted from the confluence of an unhealthy lifestyle, medical non-compliance, and several nonservice-connected disorders. As these findings are based on the evidence of record and are explained, the Board finds them of probative value in this matter. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). The Board has reviewed the appellant’s lay assertions that the factors leading to amputation – the fall and consequent leg fracture, and the treatment of the leg fracture – were faulty. The appellant is competent to report observable symptoms such as the pain and limitation she witnessed the Veteran experiencing during his medical care. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, she is not competent to determine issues regarding diagnosis, etiology, and what constitutes appropriate medical care. These are medical issues which, in this matter, involve internal pathologies beyond her ability to observe. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). On the complex question of whether the Veteran received appropriate care for his many medical problems, her lay statements are of limited probative value. Indeed, the findings in the January 2019 medical opinion preponderate against her assertions. (Continued on the next page)   In summary, the record indicates that the Veteran experienced an additional disability following VA surgical treatment in August 2007. But the weight of the competent and probative evidence is against finding that the additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care. Nor does the record indicate that the additional disability was not reasonably foreseeable, or that the surgery was performed without informed consent. 38 U.S.C. § 1151. The appellant has repeatedly asserted that the Veteran needed amputations because of faulty VA treatment. However, she lacks the medical expertise necessary to render a competent medical opinion regarding causation. For these reasons, the Board finds the preponderance of the evidence against the claim for compensation under 38 U.S.C. § 1151. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher McEntee, Counsel