Citation Nr: 20005221 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 15-28 967 DATE: January 22, 2020 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residuals of abdominal wall cellulitis due to VA medical treatment from October 20-24, 2011 is denied. FINDINGS OF FACT 1. The Veteran did not sustain an additional disability as a result of VA medical treatment from October 20-24, 2011 for abdominal wall cellulitis. 2. The Veteran’s residual scars due to abdominal wall cellulitis were the natural progress of the disease for which the hospitalization was authorized. CONCLUSION OF LAW The criteria for compensation under the provisions of 38 U.S.C. § 1151 for residuals of abdominal wall cellulitis have not been met. 38 U.S.C. §§ 1151, 5103, 5107; 38 C.F.R. §§ 3.159, 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from November 1974 to November 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Veteran provided testimony via video conference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board remanded this matter in March 2019 for additional development, which has been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to compensation under 38 U.S.C. § 1151 for residuals of abdominal wall cellulitis due to VA medical treatment from October 20-24, 2011 is denied. The Veteran seeks compensation under 38 U.S.C. § 1151 for residuals of abdominal wall cellulitis, which he claims is due to inadequate VA medical treatment during his hospitalization from October 20-24, 2011. He believes his wound was not diagnosed and treated properly, which led to additional treatment and residual scarring. To obtain compensation under 38 U.S.C. § 1151, the Veteran must show, in pertinent part: (1) a “qualifying additional disability,” (2) actually caused by the treatment furnished by VA, and (3) a proximate or direct cause that is either a fault on the part of VA or an event not reasonably foreseeable. See 38 U.S.C. § 1151. A qualifying additional disability is one in which the disability was not the result of the Veteran’s willful misconduct; and, the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran; and, the proximate cause of the disability was the result of 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; or was the result of an event not reasonably foreseeable. 38 U.S.C. § 1151. 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 the hospital care or medical or surgical treatment caused the Veteran’s additional disability or death; 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 informed consent. In determining whether additional disability exists, the physical condition immediately prior to the disease or injury upon which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361(b). It is also necessary to show that additional disability actually resulted from such disease, or that an injury or an aggravation of an existing disease or injury was suffered as a result of hospitalization or medical treatment and is not merely coincidental therewith. The mere fact of aggravation, alone, will not suffice to make the disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(1), (2). Whether the proximate cause of a veteran’s additional disability or death 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. 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). In this case, the evidence does not show that the Veteran sustained an additional disability as a result of VA treatment in October 2011. During his December 2018 hearing before the Board, the Veteran testified that he sustained residual scarring as a result of ineffective treatment of his abdominal wall cellulitis. He asserts that VA physicians did not adequately test his infection and that as a result, he was not prescribed appropriate medications. Hearing transcript, pages 3-4. He testified that he was hospitalized once and then sent home believing that the condition was healing; however, he had to return to the hospital a second time. His infection did not heal until April 2012. He testified that the infections caused his scarring. In August 2019, a VA examiner reviewed the Veteran’s claims file and found that the Veteran did not have an additional disability as a result of treatment in October 2011. The examiner stated that the Veteran was better at discharge as a result of VA treatment. The examiner stated that before treatment, the Veteran had presented with cellulitis of the abdominal wall and open wounds at the site of insulin injections, which were contaminated with charcoal powder. The Veteran had uncontrolled diabetes. At the time of discharge, the Veteran had improved with IV antibiotics and had opted for a trial of oral antibiotics on discharge rather than have additional IV antibiotic treatment at home. His cellulitis of the abdominal wall with draining wounds at the site of insulin injections was improving. The examiner noted that the Veteran had to be admitted to the hospital again and was treated depending on the results of wound cultures. Appropriate consults from infectious disease and plastic surgery were obtained for thorough treatment. The examiner stated that after a lengthy treatment in and out of the hospital the Veteran was in no need of additional treatment as of 2012. The examiner pointed out that the Veteran’s treatment was lengthy, complicated, and inevitable because of noncompliant uncontrolled diabetes, abdominal obesity, and other comorbidities. He stated that the residuals of abdominal scaring and induration were not a disability caused by treatment as they are the result of the healing process of the body following a lengthy treatment period. The examiner stated that every possible avenue of treatment was followed in a systematic way. The examiner further stated that the fact that the Veteran was admitted to a VA facility in November 2011 for a second round of IV antibiotics, followed by weeks of IV antibiotics administered at home and then oral antibiotics, was not the fault of the treatment team but was due to the nature of the disease and comorbidities. In short, the examiner found that the Veteran did not have an additional disability as a result of VA treatment and that the eventual scarring and induration were inevitable consequences of the severe cellulitis and abscesses he initially presented with. Based on the evidence, the Board finds that the Veteran did not sustain an additional disability as a result of VA treatment in October 2011. The Board considered the Veteran’s argument, but finds that his residual scars were the natural progress of the disease and healing process. Supporting this finding is the VA examiner’s assertion that the residual scarring and induration are the inevitable consequences of the severe cellulitis and abscesses the Veteran presented with and were the result of the healing process of the body following a lengthy treatment period. As noted above, compensation will not be payable for the continuance or natural progress of diseases or injuries for which the hospitalization or treatment was authorized. 38 C.F.R. § 3.361(b). Here, the examiner clearly indicated that the Veteran did not have additional disabilities from VA treatment and rather, his residuals were the natural progress of the disease for which the hospitalization was authorized, i.e. the natural healing process. The Board acknowledges the Veteran’s statements and testimony alleging that treatment provided in October 2011 was ineffective and resulted in a lengthy period of additional treatment and the residual scarring. The Board also observes that the examiner noted that scarring and induration are the result of the healing process of the body following a lengthy treatment period. Unfortunately, while the Veteran is competent to report his symptoms and describe his treatment, he is not competent to opine as to proper treatment protocol, to identify the proper healing time of his disability, or to otherwise identify the cause of his scarring. Here, the VA examiner pointed out that at discharge in October 2011, the Veteran’s condition had improved and that as treatment progressed, every possible avenue of treatment was followed in a systematic way. He stated that the Veteran’s treatment was lengthy, complicated, and inevitable because of noncompliant uncontrolled diabetes, abdominal obesity, and other comorbidities. Further, and as noted above, the examiner concluded that the Veteran did not have additional disabilities from VA treatment and rather, his residuals were the natural progress of the disease for which the hospitalization was authorized, i.e. the natural healing process. Consequently, without evidence of an additional disability due to VA care in October 2011, compensation under 38 U.S.C. § 1151 for residuals of abdominal wall cellulitis cannot be granted. The appeal is denied. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda G. Alderman The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.