Citation Nr: 20060985 Decision Date: 09/16/20 Archive Date: 09/16/20 DOCKET NO. 10-43 309 DATE: September 16, 2020 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for right above the knee amputation is denied. Entitlement to compensation under 38 U.S.C. § 1151 for left hip pain as residual of right above the knee amputation is denied. Entitlement to compensation under 38 U.S.C. § 1151 for low back pain as residual of right above the knee amputation is denied. Entitlement to compensation under 38 U.S.C. § 1151 for left leg pain and swelling as residual of right above the knee amputation is denied. FINDING OF FACT The necessity of the Veteran’s right above the knee amputation was not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, nor was it caused by an event not reasonably foreseeable. CONCLUSIONS OF LAW 1. The criteria for compensation under 38 U.S.C.§ 1151 for right above the knee amputation have not been met. 38 U.S.C.§§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 2. The criteria for compensation under 38 U.S.C. § 1151 for left hip pain as residual of right above the knee amputation have not been met. 38 U.S.C.§§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 3. The criteria for compensation under 38 U.S.C. § 1151 for left leg pain as residual of right above the knee amputation have not been met. 38 U.S.C.§§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. 4. The criteria for compensation under 38 U.S.C. § 1151 for low back pain as residual of right above the knee amputation have not been met. 38 U.S.C.§§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from August 1959 to July 1962. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in December 2019, at which time it was remanded to the RO for additional development. Specifically, the RO was required to obtain all available evidence associated with the Veteran’s tort claim under the Federal Tort Claims Act (FTCA) against VA. The matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran seeks entitlement to compensation under 38 U.S.C. § 1151 for his March 1990 right above the knee amputation, as well as for left hip pain, left leg pain, and low back pain that resulted from the amputation. Specifically, the Veteran claims that his VA treatment providers should have diagnosed his blood clot sooner, thereby not making the amputation necessary. Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability if (1) the disability or death was not the result of the veteran’s willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) the proximate cause of the disability or death was (A) 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 (B) an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran’s additional disability or death. Merely showing that a veteran received care and has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Further, 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). To establish that 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 proximately caused a veteran’s additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the veteran’s additional disability or death and that (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider or that (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. 38 C.F.R. § 3.361(d)(1). 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). Where an individual is awarded a judgment against the United States in a civil action brought pursuant to 28 U.S.C. § 1346 (b) or enters into a settlement or compromise, then no benefits under 38 U.S.C. § 1151 shall be paid to such individual for any month beginning after the date such judgment, settlement, or compromise becomes final until the aggregate amount of benefits which would be paid but for this prohibition equals the total amount included in such judgment, settlement, or compromise. 38 U.S.C. § 1151 (b)(1). Additional law regarding the offset amount is specified at 38 U.S.C. § 1151 (b)(2). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Turning to the evidence of record, in January 1990 the Veteran sought treatment for pain in his right leg and foot, with numbness in his toes. He was given an initial rule-out diagnosis of nerve entrapment and ordered a neurological consultation. During an emergency room visit he was given a tentative diagnosis of cellulitis. An X-ray of his right hip, right foot, and lumbar spine revealed no abnormalities. He was later diagnosed with tendonitis. In February 1990 the Veteran had two emergency room visits. For the first one he reported a cold, tingly right great toe. He had a neurological consultation which diagnosed probable sciatica. During the second visit he reported coldness and numbness in both lower extremities. He was referred to a VA surgeon. In March 1990 a VA surgeon admitted the Veteran for doppler studies and arteriograms. The doppler study revealed diminished arterial waveforms and peak velocities on the right side compared with the left side. The arteriogram showed evidence of severe narrowing at the junction of the right superficial femoral artery and the popliteal artery, as well as evidence of abrupt occlusion of the distal arteries of the right lower leg with no collateral circulation suggestive of embolic phenomena. In March 1990 the Veteran underwent arteriography which revealed there to be apparent embolus to the popliteal artery and some thrombosis of the vessels distally. Following the arteriography, the Veteran’s foot became acutely ischemic and he was brought to the operating room for emergency surgery. Specifically, the Veteran underwent a thromboembolectomy of the right popliteal artery and trifurcation vessels from the right common femoral artery, which included intraoperative arteriograms, intraoperative intra-arterial infusion of streptokinase, and four compartment fasciotomies of the right leg. After these procedures were performed, his surgeons felt that although his foot was not completely revascularized, he had sufficient flow to maintain viability. His surgeons therefore decided not to perform additional attempts at thromboembolectomy via the infragenicular popliteal artery or directly through the anterior or posterior tibial arteries, but instead to observe him closely. Between five and six hours after the first procedure the Veteran lost the doppler signal at his ankle due to a progressive thrombosis of his tibial perineal vessels. The surgeon diagnosed worsened ischemia and performed a thromboembolectomy via the infragenicular popliteal artery and the posterior and anterior tibial arteries. The Veteran returned to the intensive care unit in satisfactory condition, where he was evaluated and able to move his toes, had resolution of his paresthesias, and had palpable pulses at both the dorsalis pedis and posterior tibial artery. The Veteran’s condition progressed to a pre-gangrenous right foot with cellulitis of the right skin. On March 15, 1990, his surgeons performed a guillotine below the knee amputation of his right leg. On March 20, 1990 he had a follow up to close the wound. On March 28, 1990, the stump developed gangrene and the Veteran was taken to the operating room for planned debridement. The surgeon determined that the Veteran had dead tissue extending too far proximately, and instead performed an above the knee amputation. An October 1994 Stipulation for Compromise Settlement and agreed Order discussed the details of a settlement agreement between the Veteran and the United States. Specifically, the agreement indicated the stipulation “shall not constitute an admission of liability or fault on the part of the United States, its agent’s servants, or employees, and is entered into by both parties for the purpose of compromising disputed claims and avoiding the expenses and risks of litigation.” A March 2010 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The examiner opined that the Veteran’s amputation was not due to negligence, lack of proper skill, error in judgment, or similar finding of fault on the part of VA. The examiner based this opinion on a lengthy and detailed rationale. The examiner first addressed the Veteran’s contention that his diagnosis should have been made earlier, preventing the need for an amputation. The examiner explained that the medical consensus states that acute limb ischemia is any sudden decrease in limb perfusion causing a potential threat to limb viability, normally presenting up to two weeks following the acute event. Acute limb ischemia can be caused by either an embolus or a thrombus. The onset of symptoms from an embolic clot is generally more severe and acute than those caused by a thrombus. The Veteran had developed an embolic clot as shown on his March 7 arteriography. The examiner explained that such a condition usually presents with pain, pulselessness, pallor, paresthesia, and paralysis, and that these finding together indicate urgent need for evaluation and surgery if a clot is found. The examiner further explained that because the Veteran had an embolism, his symptoms should have progressed rapidly. Despite this, his presentation of symptoms was chronic, not acute. The Veteran’s pain had been present more than a month before his arteriography, and pallor and pulselessness were absent. Other signs which might otherwise have indicated acute vascular obstruction, such as asymmetric, delayed capillary refill, were absent. The examiner noted that, despite the contradictory findings, an urgent vascular evaluation was performed by the Veteran’s surgeon, which did not suggest severe obstruction. The surgeon nevertheless continued his attempt to prove or disprove vascular obstruction. Second, the examiner addressed the Veteran’s contention that the Veteran’s leg was elevated while he was being evaluated for his leg pain, thereby masking the red discoloration that would have suggested the correct diagnosis. The examiner explained that while it is true that elevation of the limb would relieve the redness and produce pallor, redness is not indicative of an embolism. As explained above, pallor is an indicator of embolism, so if anything, elevation of the leg should have made an earlier diagnosis more likely. The examiner further opined that the Veteran’s condition was a very unusual illness that had a very unusual initial manifestation. Subsequent clotting events after the amputation have led his doctors to believe that he exhibits a “hypercoagulable state,” in which blood tends to coagulate without the usual causes. Thus, it is clear in retrospect based on the Veteran’s initial examination, Doppler studies, and arteriograms that the Veteran did not have an acutely limb-threatening condition on initial presentation. Rather, the Veteran’s condition did not become acute until March 7, 1990, after his arteriograms. The examiner stated that the Veteran clearly had embolisms preceding that date, which likely rendered the leg more susceptible to the effects of the embolism of that date, but these were not to the degree which would have prompted a prudent physician to perform a corrective procedure in the absence of careful evaluation for possible sources of clot and for other etiologies of his symptoms. Thus, the Veteran’s physicians carefully weighed the evidence for his foot condition, considered the worst-case possibility (vascular disease) despite lacking evidence, and acted prudently to prove or disprove that diagnosis. When the condition became acute surgery was prompt. The examiner found no evidence in the record of negligence in the surgeries themselves, particularly considering that the initial surgery successfully removed clots. It was the underlying clotting disorder causing further obstructions in areas not amenable to removal that required a second surgery and subsequent amputation. The examiner concluded that it was very unlikely, given the Veteran’s disease state, that the loss of his limb could have been prevented. The Veteran, in statements dated August 2009 and September 2010, stated that VA admitted negligence with respect to his amputation and associated conditions when the Veteran’s FTCA action against VA was settled in October 1994. The Veteran has provided a one-page settlement acknowledgement, signed only by him, dated December 1994. The acknowledgement appears to have been created for him to acknowledge attorney fees. It says that he received a settlement of $650,000 less $176,617.64 attorney fees and expenses due to the negligent treatment which occurred on January 27, 1990. The Veteran also supplied photocopies of the settlement checks. In a January 2011 statement, the Veteran explained that the first time he went to the emergency room for his right foot was in August 1989, when he was treated for tendonitis. From August 1989 to March 1990 he received no vascular tests. The pain was in his foot. The Veteran stated that in March 1990, his surgeon made a recommendation on Thursday that he be admitted for testing, but he was not admitted until Monday. By Monday it was too late; his foot was cold and turning blue. The Veteran also stated that the above the knee amputation was only necessary because he fell on his stump after the below the knee amputation. The Veteran’s doctors would not let his wife stay in his room with him until he fell. In his January 2011 VA Form 9 the Veteran explained that his claim is based on an amputation of his right leg at a VA medical center in March 1990. He stated that he sought treatment at VA in August 1989 regarding his right foot and was treated for tendinitis. He stated that from August 1989 to March 1990 no vascular testing was conducted. He contended that VA was negligent in not properly diagnosing his condition in a timely manner and that this led to an amputation in March 1990. He also contended that an additional amputation, this time above the right knee, was necessitated because he got out of bed and fell on his knee and implied that this was due to VA’s refusal to allow his spouse to stay with him in his hospital room. At the Veteran’s May 2011 RO hearing, he again stated that he first reported pain in the bottom of his foot to VA treatment providers in August 1989. He stated that he was diagnosed with tendonitis and prescribed medication. He continued going back at least once every two or three weeks, because the pain was increasing. He stated that every time he went to the emergency room at VA, they would put him on a bed and elevate his foot. Then, they would call a surgeon to check for blood clots, but by the time the surgeon got there, the blood clot would have moved because of the elevation. The Veteran stated that he asked for the Doppler studies earlier, but they would not do it until March 1990, and by then it was too late because his foot had turned black and stayed cold all the time. The Veteran further stated that after the below the knee amputation, the hospital would not let his wife stay with him, and because he was alone he fell, necessitating the above the knee amputation. The Veteran further stated that the FTCA settlement determined that VA was negligent in diagnosing his condition. The Veteran explicitly stated that his contention was not that there was negligence involved in the actual surgery in which his leg was amputated. Rather, the Veteran asserted that VA was negligent in not diagnosing his condition sooner, and in letting him get out of bed alone when his wife asked to stay with him. The Veteran stated that he signed informed consent forms for all procedures performed. A November 2012 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The examiner opined that medical record review did not identify carelessness, negligence or the lack of proper skill, error in judgment, or similar finding of fault on the part of VA. Treatment was well documented and appropriate treatment and plan of care was rendered based on the Veteran’s reported symptoms, objective physical findings, and diagnostic results. There was a record of appropriate subspecialty consultation. There was no evidence suggesting a failure to exercise the standard degree of care nor was care rendered without the Veteran’s informed consent. The Veteran’s amputation was not a reasonably unforeseeable event for a diagnosis of limb ischemia. The presentation was clinically difficult to diagnose because the classic pentad of pain, pulselessness pallor, paresthesia, and paralysis were not fully present. Even when clinical findings suggested a vascular event, they were not specifically indicative of an acute arterial occlusion with limb ischemia, as there were still Doppler pulses present and no pallor, rubor, or rest pain. The clinical plans, diagnostics, and treatment rendered were therefore medically reasonable as they exercised the degree of care that would have been expected of a reasonable health care provider. At his April 2013 hearing before the Board, the Veteran and his representative argued that VA would not have settled the Veteran’s FTCA claim for so large a sum as $650,000 if VA did not believe that some negligence had occurred. In January 2020, the Board received the complete U.S. District court files for the Veteran’s FTCA case. The file consisted of pleadings, discovery, and transcripts. After a review of all of the evidence, the Board finds that the criteria for entitlement to compensation under 38 U.S.C. § 1151 for the Veteran’s March 1990 right above the knee amputation, as well as for left hip pain, left leg pain, and low back pain that resulted from the amputation, have not been met. As an initial matter, the Board notes that informed consent analysis is not applicable to the Veteran’s claims. The Veteran, as he stated at his May 2011 RO hearing, is not claiming that his amputation was an unforeseen consequence of his surgeries. Rather, he is claiming that VA was negligent in failing to diagnose his condition earlier and in letting him fall on his newly amputated limb. The Veteran’s claim is therefore focused on what happened before and between his surgeries, not during. In any event, signed consent forms are in the record and the Veteran states that he was informed of the amputations before the surgeries. The Board does not find merit in the Veteran’s contention that VA has admitted negligence in settling his FTCA claim. The complete U.S. District court file for the Veteran’s FTCA case, received in January 2020, did not include any admission of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA. In fact, the October 1994 Stipulation for Compromise Settlement specifically indicated the settlement did not constitute an admission. The Veteran has provided copies of the checks he received, and an acknowledgement of the settlement signed only by the Veteran. The presence of the word “negligence” on a document signed only by the Veteran is not evidence that VA admitted negligence in settling the Veteran’s claim. The Board further finds no merit in the Veteran’s argument that a large settlement is indicative of culpability on the part of VA, because there is no indication that VA admitted negligence as part of the settlement. See, e.g., Konstantinidis v. Chen, 200 U.S. App. D.C. 69, 626 F.2d 933, 939 (1980) (“settlement neither requires nor implies any judicial endorsement of either party’s claims or theories”). Moreover, the legal standard for claims under the FTCA is different from the legal standards for claims under 38 U.S.C. § 1151. As to the timeliness of the Veteran’s diagnosis, the Board finds the opinions of the VA examiners highly probative. They are detailed opinions based on medical expertise that thoroughly explain that the Veteran’s amputation was not the result of VA carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. The examiners explained the medical consensus on how ischemia is diagnosed, and how the Veteran’s doctors successfully applied those rules. The Board recognizes that the Veteran believes his condition should have been diagnosed sooner, but the Veteran has provided no medical opinion to that extent, and his own opinion is conclusory and lacks competency. The Veteran states that his doctors should have recognized his symptoms as requiring tests for ischemia, but he does not explain why. Likewise, the Veteran’s contention that his blood clot moved when his foot was elevated does not constitute evidence that a reasonable physician would not have elevated his foot. The Board finds the opinions of the VA examiners more probative, and therefore finds that there was no carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault with regard to diagnosing the Veteran. As to the Veteran’s contention that VA was at fault for letting him fall between amputation surgeries, the Board finds that this argument has no factual basis. The Veteran’s surgical records state that the above the knee amputation was performed because of gangrenous infection. There is no mention in the Veteran’s treatment records of a fall occurring or giving rise to gangrene. The records instead reflect a dying ischemic flap caused by the same condition that caused the Veteran to require his initial amputation, and the opinions of the VA examiners do not question this causality. The Board finds the contemporaneous medical records and the opinions of the VA examiners more probative than the Veteran’s recollections. Furthermore, even if the Veteran’s second amputation was the result of a fall, the Veteran blames this fall on his not being with his wife at the time. The Veteran, however, has not explained how VA acted negligently in not permitting his wife to spend the night with him in the hospital. The Board therefore finds that there is no basis to the Veteran’s contention that VA was at fault for letting him fall between amputation surgeries. For these reasons, the Board finds that the necessity of the Veteran’s right above the knee amputation was not proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, nor was it caused by an event not reasonably foreseeable. Benefits under 38 C.F.R. § 1151 must therefore be denied. The Board notes that the record also contains evidence which links the Veteran’s left hip, left leg, and lower back conditions to his amputation. Because the Board finds no entitlement to benefits under 38 U.S.C. § 1151 for any condition which arose from the March 1990 amputation, however, entitlement to benefits under 38 U.S.C. § 1151 for these residual conditions must too be denied as a matter of law. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, Associate 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.