Citation Nr: 21009147 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 18-02 048 DATE: February 19, 2021 REMANDED The issue of compensation under 38 U.S.C. § 1151 for below-the-knee amputation of the right leg and foot is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1954 to June 1957. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2016 rating decision. In January 2020, the Veteran testified at a Board hearing; a transcript of the hearing is associated with the claims file. In February 2020 and October 2020, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. The issue of compensation under 38 U.S.C. § 1151 for below-the-knee amputation of the right leg and foot is remanded. The Veteran contends he did not receive proper treatment at the Bay Pines VA Medical Center (VAMC) for right Charcot foot between December 2013 and March 2014, and as a result, he required a right below-the-knee amputation in May 2014. Specifically, he believes that VA doctors should have immediately prescribed a non-weightbearing boot when Charcot foot was first suspected. He indicated he previously had Charcot foot in 1995 in his left foot and ankle and the doctor at the time “immediately prescribed a [Charcot Restraint Orthotic Walker (CROW)] boot (non-weightbearing)” for him. He described being prescribed a controlled ankle movement (CAM) walker boot in December 2013 and a CROW walker boot, which “was still not a non-weightbearing boot,” in early March 2014. He asserts that when he saw his podiatrist at the Lee County VA Community Based Outpatient Clinic (CBOC) in March 2014, the doctor “acknowledged that [he] had Charcot foot and that a non-weightbearing boot should have been prescribed for [him] from the beginning.” In his informal claim received in July 2014, he summarized that “because he “did not receive the proper treatment at the Bay Pines Clinic, [he] left for New York City where [he] knew [he] could get the proper treatment.” The damage to his foot, however, “was too severe to save it.” Accordingly, in May 2014, he underwent below-the-knee amputation of his right leg and foot by a private vascular surgeon, F. Porreca, M.D, in New York. In subsequent correspondence, the Veteran also expressed his belief that doctors at the Bay Pines VAMC were not authorized to prescribe a non-weightbearing boot for him when Charcot foot was first suspected or diagnosed and instead were required to follow a policy or procedure involving “and observation period of 90 days . . . before any prescription could be written” for a non-weightbearing boot. See Veteran correspondence received Oct. 30, 2015, Dec. 6, 2018, and Oct. 14, 2020. Citing guidelines for the treatment of Charcot foot by the American Medical Association and articles he submitted in November 2016 regarding the treatment of Charcot Foot from Podiatry Today, he reiterated his belief that he should have been prescribed a non-weightbearing boot immediately in December 2013 when Charcot Foot was first suspected. He believes VA’s failure to properly treat his right Charcot foot with a non-weightbearing boot proximately caused the continuance or natural progress of the disease, necessitating amputation. Unfortunately, additional development is required to decide the claim. First, the AOJ should obtain outstanding treatment records. When VA evaluates a claim for compensation benefits under 38 U.S.C. § 1151 for additional disability due to VA medical care or treatment, VA compares the veteran’s condition immediately before the beginning of the medical treatment or examination upon which the claim is based to the veteran’s condition after such care, treatment, or examination has stopped. 38 C.F.R. § 3.361(b). Treatment records from the Lee County VA CBOC and Bay Pines VAMC reflect that the Veteran is a seasonal resident in Florida. Pertinent to the current claim, he was last treated by VA in Florida in March 2014 before returning to New York and was next seen by his primary care physician at the Lee County VA CBOC in November 2014. To properly evaluate or compare the Veteran’s right Charcot foot after VA treatment in Florida stopped in March 2014, the AOJ should request any private or VA treatment records dating from March 2014 through May 2014 from his medical provider(s) in New York, including records from his private vascular surgeon, F. Porreca, M.D., who performed the below-the-knee amputation in May 2014. Second, in February 2021, the Veteran’s representative argued on his behalf that the December 2020 fee-basis medical opinion was inadequate because the reviewing physician did not sufficiently consider the Veteran’s lay statements regarding prior treatment for left Charcot foot that involved a non-weightbearing boot and his assertion that he requested the same treatment from VA providers between December 2013 and March 2014. Citing articles from the Cleveland Clinic and the University of California San Francisco Department of Surgery, the representative also argued that complete non-weightbearing is required during the first stage of Charcot foot to prevent further collapse of the foot and ankle bones, but the VA care the Veteran received was “neither appropriate nor timely.” The representative added that the December 2020 reviewing examiner did not refute any medical documentation or literature the Veteran cited or provided in support of his claim and did not offer and medical literature to support the opinion that “VA did not make a fault as claimed by the Veteran as he was given timely and proper treatment.” The Board agrees that a supplemental medical opinion is required. The December 2020 fee-basis physician reviewed the treatment VA provided to the Veteran since December 2013, including the Veteran declining some treatments such as use of a wheelchair or knee scooter, and noted “he underwent below-the-knee amputation because of the worsening ankle condition.” To support the conclusion that the Veteran received timely and proper treatment without fault on the part of VA treatment providers, the reviewing physician explained, “A delay in the prescription of a non-weightbearing boot is not substantial in the progressing Charcot neuropathy as it is a progressive deterioration of weight-bearing joints due to diabetes and over time it may necessitate amputation.” The opinion does not address the Veteran’s contention that the standard care for acute Charcot foot requires complete off-loading or non-weightbearing and that the failure to timely provide such treatment caused his Charcot foot to progress the point that he required amputation. The AOJ should obtain a supplemental medical opinion. The matter is REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain the following records: a) All treatment records from the Veteran’s private vascular surgeon, F. Porreca, M.D., dating from March 2014 through May 2014. b) Any treatment records from VA facilities in New York dating from March 2014 through May 2014. c) Any other private treatment records dating from March 2014 through May 2014 (such as from a referring physician) that the Veteran identifies as pertinent to his claim. 2. Provide the Veteran’s electronic claims file and a complete copy of this Remand to a podiatrist, internal medicine physician, or other appropriate clinician. The Veteran believes that when treatment providers at the Bay Pines VAMC first suspected he had right Charcot foot in December 2013, he should have been prescribed a non-weightbearing boot immediately. He also believes that the CAM and CROW boots that were initially prescribed were outside the standard of care for treatment or management of Charcot foot. Following a review of the claims file, the reviewing examiner should address the following questions: a) Is it at least as likely as not (a 50 percent probability or greater) that VA failed to timely and properly treat the Veteran’s right Charcot foot between December 2013 and March 2014 (including by failing to immediately prescribe a non-weightbearing boot when right Charcot foot was first suspected), proximately causing the continuance or natural progress of the disease, necessitating below-the-knee amputation of the right leg and foot in May 2014? b) Is it at least as likely as not that the Veteran failed to follow properly given medical instructions while receiving VA treatment between December 2013 and March 2014, proximately causing the continuance or natural progress of his right Charcot foot? c) If VA failed to timely and properly treat the Veteran’s right Charcot foot and caused the continuance or natural progress of the disease, is it at least as likely as not that VA failed to exercise the degree of care that would be expected of a reasonable health care provider in the treatment and management of Charcot foot? A medical rationale must be provided for all opinions expressed. In providing the requested opinion(s), the examiner should describe the natural progress of diabetic Charcot foot, generally, and the accepted standard(s) of care for the treatment and management of Charcot foot. The examiner should compare that standard of care to the treatment the Veteran received by VA treatment providers between December 2013 and March 2014 for right Charcot foot. The examiner should also address the Veteran’s belief that VA treatment providers failed to follow guidelines for the treatment of Charcot foot set forth by the American Medical Association and articles he submitted in November 2016 regarding the treatment of Charcot Foot from Podiatry Today. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Kirscher Strauss 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.