Citation Nr: 21072944 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 07-26 210 DATE: December 7, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for left foot skin graft residuals is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) from March 16, 2005 to December 30, 2008 is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran underwent a left foot punch biopsy at a VA Medical Center in June 2001. He then required a left foot skin graft in July 2001 to close the wound. 2. The June 2001 punch biopsy was not performed with adequate informed consent. 3. From March 16, 2005 to December 30, 2008, the Veteran's service-connected disabilities combined to prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for compensation benefits pursuant to the provisions of 38 U.S.C. § 1151 for left foot skin graft residuals are met. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. 2. From March 16, 2005 to December 30, 2008, the criteria for a TDIU rating are met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1973 to March 1996 in the United States Air Force. The Board notes that although the most recent examinations did not substantially comply with the remand instructions in the Board's February 2020 remand, as the Board is now granting the Veteran's claims, there is no violation of Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to VA benefits under 38 U.S.C. § 1151 for an additional left foot disability resulting from medical procedures completed in June 2001 and July 2001 at, and subsequent care provided by, the VA Medical Center in Memphis, Tennessee. Under 38 U.S.C. § 1151, compensation may be paid for a qualifying additional disability that results from VA treatment or vocational rehabilitation as if the additional disability or death were service connected. For a claimant to be eligible for compensation under 38 U.S.C. § 1151 due to VA treatment, the evidence must establish that he sustained additional disability and that this additional disability is causally linked to the VA treatment. If there is no competent evidence of additional disability or no evidence of a relationship between the hospitalization, medical or surgical treatment, or examination and the additional disability, the claim for compensation under 38 U.S.C. § 1151 must be denied. In determining whether a veteran has an additional disability, VA compares the veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran's condition after such care or treatment. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b). 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). An additional disability or death caused by the veteran's failure to follow medical instructions will not be deemed to be caused by hospital care, medical or surgical treatment or examination. 38 C.F.R. § 3.361(c)(3). 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 either VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, as relevant in this case, VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. 38 C.F.R. § 3.361 (d)(1). In applying these standards to the instant appeal, it is first found that the Veteran demonstrates a qualifying additional disability. The medical evidence clearly establishes that the Veteran had additional left foot disability as a result of his June 2001 VA punch biopsy and subsequent skin grant. The Veteran's multiple medical examinations and treatment records indicate that the Veteran's left foot skin graft was a necessary result of the punch biopsy. The Board must now determine whether the proximate cause of the additional disability was the fault of VA. As is amply demonstrated by the various opinions of record, including the November 2020 VA examiner's opinion and April 2021 opinion, VA has determined that there was no carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault with respect to the left foot punch biopsy. The April 2021 opinion, however, did note that "delayed wound healing after punch biopsy could not have reasonably been foreseen although it is a known complication in a few," but found that the need for the graft to resolve the wound healing was not due to carelessness or negligence. The Board notes that throughout the pendency of this case, VA attempted to obtain documentation pertaining to the Veteran's informed consent. None of the voluminous treatment records obtained and associated with claims file demonstrates that the Veteran underwent the left foot punch biopsy procedure with informed consent. In fact, the Veteran's main contention throughout the period on appeal is that he never consented to the procedure. Notably, however, there is evidence of multiple informed consent records for other procedures documented in the Veteran's treatment records. In June 2021, the AOJ finally determined that there was no informed consent for this procedure in the Veteran's available records and notified the Veteran. Accordingly, the evidence of record fails to establish that the Veteran underwent the July 2010 procedure with informed consent. See 38 C.F.R. § 17.32 (c). Therefore, entitlement to benefits under the provisions of 38 U.S.C. § 1151 are warranted for residuals of left foot punch biopsy, to include left foot skin graft. 2. Entitlement to a TDIU rating due prior to December 30, 2008. The Veteran contends that his service-connected disabilities rendered him unable to obtain substantially gainful employment prior to December 30, 2008, the current effective date for the previously granted TDIU benefits. The Board ultimately concurs. Entitlement to a TDIU rating requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, as of March 16, 2005 service connection and disability ratings were in effect for: chronic obstructive pulmonary disorder rated at 60 percent, sinusitis and allergic rhinitis rated at 50 percent, right shoulder acromioclavicular (AC) joint separation rated at 20 percent, left knee meniscus tear rated at 10 percent, hypertension rated at 10 percent, allergic conjunctivitis rated at 10 percent, bilateral foot planter warts rated at 10 percent, bilateral hand planter warts rate at 10 percent, and anterior stromal scars of the cornea in both eyes rated noncompensable. The Board notes that the previous grant of entitlement to TDIU beginning December 30, 2008 was based largely upon the fact that the Veteran's COPD, sinusitis/rhinitis, and cardiovascular disabilities combined to prevent him from obtaining physical based employment, and his work history and education excluded the possibility of gainful sedentary employment. The Board finds that the same conclusion can be reached for the period prior to December 30, 2008. The only substantial difference between these periods is the statement provided by the VA physician on December 30, 2008 indicating that the Veteran's service-connected disabilities precluded him from gainful employment. (Continued on the next page) The Board finds that the Veteran had essentially the same capacity for obtaining and sustaining substantially gainful employment prior to December 30, 2008 as he did following that date. Furthermore, the period following December 2008 does not include increases to the Veteran's service-connected COPD, respiratory, and/or cardiovascular disabilities that would indicate more severe impact on the Veteran's capacity for employment. In fact, the Veteran's COPD disability rating was decreased to 30 percent effective April 2009 and then returned to 60 percent effective January 2014. The Veteran was granted a TDIU exclusively because he did not have the education or work history that would allow for him to obtain substantially gainful employment and his disabilities prevented him from obtaining physical based employment. As stated above the Board finds that the severity of these disabilities, particularly COPD, sinusitis/rhinitis, and cardiovascular disabilities, was roughly identical before and after December 30, 2008. Therefore, affording the Veteran the benefit of the doubt, the Board finds that the capacity of the Veteran to secure or follow a substantially gainful occupation as a result of service-connected disabilities was essentially the same for the period on appeal prior to December 30, 2008. The Veteran filed the claim seeking a TDIU rating on August 9, 2005. This is considered a claim for an increased rating, and the effective date for such an award is typically the date of receipt of the claim or the date entitlement arose, whichever is later, which would result in the TDIU grant being effective as of August 9, 2005. 38 C.F.R. § 3.400(o)(1). However, there is an exception to this general rule allowed where an earlier effective date may be assigned when a claim for an increased rating is received within one year from evidence showing a factually ascertainable increase in disability. Here, the Veteran underwent sinus surgery on March 16, 2005, which is found to be the earliest factual increase in disability within the one-year period prior to filing the claim for an increased rating of TDIU. Therefore, entitlement to a TDIU is established as of March 16, 2005. The appeal is granted. K. McDonald Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. McLeod 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.