Citation Nr: 20041760 Decision Date: 06/18/20 Archive Date: 06/18/20 DOCKET NO. 16-41 983 DATE: June 18, 2020 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for right ankle nonunion with deformity as a result of a Department of Veterans Affairs (VA) right ankle surgery on September 11, 2012 is denied. FINDING OF FACT Additional disability of right ankle nonunion with deformity was not proximately due to carelessness, negligence, lack of proper skill, error in judgment or other instance of fault on the part of VA, or due to an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for right ankle nonunion with deformity as a result of a VA surgery performed in September 2012 have not been met. 38 U.S.C. §§ 1151, 5103A, 5107; 38 C.F.R. §§ 3.358, 3.361, 17.32. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1961 to April 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by the VA Regional Office (RO). Entitlement to compensation under 38 U.S.C. § 1151 for right ankle nonunion with deformity as a result of a VA right ankle surgery on September 11, 2012. The Veteran asserts that he suffered from a painful nonunion with deformity, necrosis of talar bone due to decreased blood supply, and nerve damage as a result of an attempted right ankle fusion surgery on September 11, 2012. Under 38 U.S.C. § 1151, if VA hospitalization or medical or surgical treatment results in additional disability or death that is not the result of the claimant’s own willful misconduct or failure to follow instructions, compensation may be awarded in the same manner as if the additional disability or death were service connected. See 38 C.F.R. §§ 3.361. In order to constitute a qualifying additional disability, the proximate cause of the additional disability must have been (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the facility furnishing the care, treatment, or examination, or (2) an event not reasonably foreseeable. 38 C.F.R. § 3.361(a). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran’s additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment 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). 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 or medical or surgical treatment caused that disability; and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (2) VA furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. In evaluating the Veteran’s claim, the Board first must consider whether the evidentiary record shows that he has additional disability that was caused by negligent VA medical treatment. See 38 U.S.C. § 1151(a)(1). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to compensation under 38 U.S.C. § 1151 for right ankle nonunion with deformity claimed to be the result of improper surgical treatment at the VAMC in Fort Meade, Maryland. VA treatment records show that the Veteran underwent a right ankle hardware removal with fusion on September 11, 2012, at Fort Meade VA Medical Center (VAMC). The operative note indicates that the pre- and post- operative diagnosis was right ankle pain with traumatic arthritis. The Veteran was found to have severely arthritic right ankle with hardware during the operation. There were no complications and the Veteran left the operating room in stable condition. Following surgery, the Veteran was admitted for observation status post right ankle fusion, with severe post-operative pain. Pain improved throughout the hospitalization and he was discharged to home the next morning. Private treatment records reflect that since the surgery, the Veteran continued to have progressively worsening pain and deformity involving the right ankle. In June 2013, the Veteran was referred to Dr. B.D.H. at the Black Hills Orthopedics. Records from Dr. H. show that the Veteran had a painful nonunion with deformity and numbness and lost some height of the ankle due to collapse and avascular necrosis of the talar body from decreasing blood supply. In July 2013, Dr. H. performed excision of the necrotic bone of the talar body with repair of the ankle nonunion and then fusion of the subtalar joint with a femoral head allograft. In May 2014, the Veteran underwent another procedure involving removal of deep hardware of the right tibia and right tibial rodding due to stress fracture of the right distal tibia. A VA medical opinion was obtained in April 2016. The VA examiner opined that although the Veteran had a failed fusion and his right ankle did not heal appropriately resulting in avascular necrosis and nonunion of the ankle, it was not due to any negligent care, lack of proper skill, or error in judgment on the part of VA in furnishing the surgical treatment in September 2012. The examiner first noted that the recommendation for a fusion was appropriate by the surgeon as the Veteran had been experiencing continued pain and degenerative changes after the initial injury. Having been educated about the possible sequelae of a surgical fusion and made aware that avascular necrosis could occur being a risk going into surgery, the Veteran made an informed consent. The examiner stated that the myriad of possible sequelae that could occur with a fracture, fusion and post-operative AVN, and continued fracture occurred by chance and not due to any negligent or in appropriate care, diagnosis, or surgical intervention. Surgery is not fool-proof and not a cure-all. In response to the June 2019 Board remand, a VA nexus opinion was obtained in February 2020. After a review of the complete claims file, the reviewing physician stated the Veteran’s ankle nonunion with deformity was a common complication from his attempted surgery for fusion on September 11, 2012. The examiner explained that ankle fusion is a complex procedure, with a study published in December 2017 in the British Medical Bulletin indicating a nonunion rate of 13.7 percent and a malunion rate of 6.3 percent, among other complications. It was also noted that an earlier study in the Journal of Bone and Joint Surgery in 1980 reported a 58 percent rate of additional surgery in the first year after ankle fusion is performed. Thus, the examiner stated that the Veteran’s complications of collapse of his talus with nonunion and resultant poor alignment of the heel are all considered ordinary risks of the treatment provided. Furthermore, the examiner opined that “[t]his surgery was medically appropriate given the Veteran’s continued pain due to post-traumatic arthritis in his ankle.” The examiner reasoned that “[i]t was more likely than not made more difficult by the cystic changes in his joint surface which existed prior to surgery, as this likely contributed to his post-surgical collapse. These are likely due to either his post-traumatic arthritis or his inflammatory arthritic condition.” The examiner added that treatment notes throughout the file indicated treatment for an inflammatory condition in addition to his post-traumatic arthritis, with frequent injections of his hands and feet for this condition without a clear diagnosis; this makes the Veteran more likely to experience complications following his fusion surgery, and is unrelated to his service connected condition. The Board also considered the Veteran’s lay statements. The Veteran is not competent to provide an opinion as to the cause of his additional disability or whether a medical professional acted with a reasonable standard of care or acted with negligence, carelessness, lack of proper skill, error in judgment or fault. An opinion as to the cause of the Veteran’s additional disability due to VA treatment would involve an analysis of the medical records on file and a knowledge of highly complex medical matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran may be competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); see also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (reiterating this axiom in a claim for rheumatic heart disease). It is not shown that the Veteran is otherwise qualified through specialized education, training or experience to offer an opinion on medical matters. (Continued on the next page)   Moreover, the Board finds the aggregate of the April 2016 and February 2020 VA medical opinions to be the most probative evidence of record concerning whether additional disability of right ankle nonunion with deformity from the surgery was the result of carelessness, negligence, lack of proper skill, or error in judgement by VA practitioners, or due to an event not reasonably foreseeable. The physicians’ rationale are well-reasoned and based on consideration of the Veteran’s medical records. Thus, the Board is satisfied that the VA medical opinions of record are competent, credible, persuasive, and probative for deciding this appeal. Therefore, the claim cannot be granted under the provisions of 38 U.S.C. § 1151. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, Counsel 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.