Citation Nr: 21007855 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 13-10 596 DATE: February 10, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for left leg axonal neuropathy with atrophy and low back pain due to VA treatment is denied. FINDING OF FACT The weight of the evidence does not establish left leg axonal neuropathy with atrophy and low back pain resulted from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for left leg axonal neuropathy with atrophy and low back pain due to VA treatment have not been met. 38 U.S.C. §§ 1151, 5103A, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1972 to December 1980. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified at a personal hearing before the Board in May 2018, and a transcript of the hearing is of record. This case was initially before the Board in October 2018, when it was remanded for further development. A June 2020 supplemental statement of the case was most recently issued, and the case is once again before the Board. The Board notes that the Veterans Law Judge who presided over the hearing is no longer employed at the Board. In a July 2020 letter, the Veteran was provided with the opportunity to request a new hearing. A subsequent letter was sent to him in October 2020. The Veteran confirmed in a January 2021 statement that he does not want an additional hearing. As such, the Board may proceed on the appeal. The Board acknowledges that the Board previously denied a claim to reopen service connection for a left ankle fracture with fusion in August 2009. This decision is now final. However, a claim under 38 U.S.C. § 1151 constitutes a new and wholly separate claim. Therefore, new and material evidence is not needed in this case. 38 U.S.C. § 1151 1. Entitlement to compensation under 38 U.S.C. § 1151 for left leg axonal neuropathy with atrophy and low back pain due to VA treatment. In order for the Veteran 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 etiologically linked to VA treatment by the appropriate standard under 38 U.S.C. § 1151. If there is no competent evidence of additional disability or no evidence of a nexus between the hospitalization, medical or surgical treatment, or examination and the additional disability or death of the Veteran, the claim for compensation under 38 U.S.C. § 1151 must be denied. 38 U.S.C. § 1151 provides that compensation under Chapters 11 and 13 of 38 U.S.C. shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability or death were service connected. For the purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran’s willful misconduct and: (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary [of VA], either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and 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 the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable; or (2) the disability or death was proximately caused by the provision of training and rehabilitation services by the Secretary (including by a service-provider used by the Secretary for such purpose under section 3115 of this title) as part of an approved rehabilitation program under chapter 31 of this title. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has left leg axonal neuropathy with atrophy and low back pain due to VA treatment, specifically left subtalar fusion surgery in June 1987. He therefore contends that he is entitled to compensation under the provisions of 38 U.S.C. § 1151. This decision is limited to his claim based on 38 U.S.C. § 1151. The weight of the evidence does not establish that the Veteran’s current claimed disability is due to VA’s carelessness, negligence, lack of proper skill, error in judgment, similar instance of fault, or an event not reasonably foreseeable and that the best evidence int his case provides evidence against this claim. The Veteran was afforded several September 2019 VA examinations and an opinion which clearly address this question. The examiner stated that the Veteran’s left leg axonal neuropathy with atrophy is less likely as not due to VA treatment (subtalar fusion for heel fracture). The examiner noted that a review of the medical records for the Veteran shows that the subtalar fusion surgery was performed 30 years ago in 1987. She noted that records show that the surgery was without complications and additional records show that the Veteran had some residual mild pain in the left foot following surgery that required orthotics. She noted that this is usual with that type of injury and surgery. However, she noted that there is no evidence of neuropathy or atrophy of the left lower extremity for several years after surgery and there is no progression of symptoms between the surgical date and the diagnosis of neuropathy and atrophy that would link these two conditions as a complication of the subtalar fusion surgery. The examiner additionally noted that although “low back pain” was noted in the claim, the Veteran confirmed at the examination that his low back pain is due to known degenerative disc disease and degenerative joint disease of the lumbar spine and not related to his VA surgery treatment in 1987. Further, she noted that subtalar fusion is not a cause of low back pain. The examiner continued stating that the proximate cause of the Veteran’s claimed left leg axonal neuropathy with atrophy is unknown and it is not caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA furnishing the treatment. She rationalized that records indicate that the Veteran had follow up care in the outpatient ortho clinic with documentation of improvement in pain, and healing of scars. Additionally, she noted that X-rays showed healing of the fracture post op. She stated that there is no evidence of complication in the months following surgery and there are no records indicating complications subsequently. She noted that the neuropathy and atrophy appeared several years later and are not associated with failure of the fusion operation. The examiner stated that current X-rays show successful fusion with expected mild degenerative joint disease 30 years later. The VA examiner additionally opined that the cause of the left leg neuropathy with atrophy is unknown and the cause of the low back pain is age related to degenerative disc disorder and degenerative joint disease. She rationalized that there are no events not reasonably foreseeable that can be linked to the Veteran’s left leg neuropathy and atrophy. She noted that these appeared years after the surgery and are not linked to VA treatment. Moreover, she concluded that the VA had exercised the degree of care that would be expected of a reasonable health care provider. The examiner noted that the Veteran’s heel fracture was given time to heal after the initial fracture in 1986 and when the Veteran had continued pain, subtalar fusion was a very reasonable and desirable treatment, which was performed in 1987 without complications. The examiner then listed the medical literature she had reviewed in formulating her opinions. There are no other opinions of record addressing standard of care or foreseeability. Following a review of the evidence in this case, and the applicable laws and regulations, it is the Board’s conclusion that the preponderance of the evidence is against the Veteran’s claim for compensation under 38 U.S.C. § 1151 for left leg axonal neuropathy with atrophy and low back pain. The Board has considered the Veteran’s statements relating his claimed disability to his June 1987 surgery. He is certainly competent, even as a layman, to comment on things within the perception of his five senses, such as left ankle pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Nonetheless, the Veteran is not competent to opine on questions of causation, negligence, or reasonable foreseeability of medical risks related to his June 1987 procedure. These determinations are based upon findings that are medically complex in nature and simply not readily amenable to lay comment. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Indeed, contrary to his assertions, the medical evidence, as highlighted by the September 2019 examiner, shows that VA was not careless, negligent, used lack of proper skill, or demonstrated error in judgment, or similar instance of fault. The evidence also shows that the complications claimed by the Veteran were reasonably foreseeable. Thus, under these circumstances, the claim for compensation under the provisions of 38 U.S.C. § 1151 must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the competent evidence weighs against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, 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.