Citation Nr: 21010362 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 13-08 520 DATE: February 24, 2021 REMANDED Entitlement to VA benefits under 38 U.S.C. § 1151 for disabilities of the right leg and foot, to include amputation of the right great toe due, due to neglect or improper treatment at a VA facility is remanded. REASONS FOR REMAND The Veteran, who died in June 2019, had active duty military service from September1977 to November 1977. The Appellant, the Veteran’s widow, has been substituted for the claim of entitlement to benefits under 38 U.S.C. § 1151 for a disability which are allegedly the result of neglect or improper treatment at a VA facility. Specifically, the Appellant claims that delay in proper treatment caused by a misdiagnosis of gout for nearly a month prior to the discovery of a blood clot in the Veteran’s foot, which ultimately led to amputation of the great toe, constitutes neglect or improper treatment. The Veteran had provided a written statement of the events which he believed ultimately led to the amputation of his right great toe. He stated that he sought treatment for foot pain in November 2010 at the Tomah VA Medical Center (VAMC), which was diagnosed as gout. The condition continued to worsen, and the pain did not resolve even with medication, leading him to seek additional treatment on two more occasions. In December 2010 he sought treatment and his foot was cold to the touch and had changed color; at that time, he was referred to a different VA facility for treatment of ischemia due to peripheral vascular disease. His right great toe was subsequently amputated in May 2011 as a result of gangrene. The Veteran contended that the treating physicians at VA did not touch him, that is, they performed only a visual evaluation, and did not perform any testing to confirm their diagnosis of gout. He contended that the progression of his symptoms from November 2010 to May 2011 were not foreseeable results of his initial complaint of foot pain. He also asserted that he was misdiagnosed at the initial visit and provided with treatment which could not resolve the issue; he felt that the blood clots should have been located and removed sooner. In June 2019, the Board remanded the claim for further development, specifically to obtain an independent medical opinion regarding the claim. The medical opinion was performed in October 2020. The examiner documented a thorough review of the file, including the course of treatment for the Veteran’s blood clot beginning in December 2010, immediately prior to being transferred to the Madison VA Medical Center. While the examiner provided a review and opinion regarding the Veteran’s treatment since December 2010, there is no discussion of the initial diagnosis of gout in November 2010, which the Veteran had claimed was a misdiagnosis that delayed the proper treatment of the blood clot and ultimately led to the amputation of the right toe. The Board finds that remand is necessary to obtain an addendum opinion, in which the examiner adequately discusses the entire course of treatment and potential misdiagnosis and any resulting delay as alleged by the Veteran. The matter is REMANDED for the following action: Pursuant to 38 U.S.C. § 5109, obtain an expert medical opinion from a vascular surgeon or similarly qualified and experienced provider who is NOT an employee of the VA to evaluate the Veteran’s claim. Forward the claims file to the medical expert with a copy of this Remand for a summary of relevant information and background. The medical expert is to address the following: (a.) Does the medical evidence of record show that the Veteran incurred a disability of the right foot or right leg (to include eventual amputation of the right great toe) which was at least a likely as not (probability 50 percent or greater) proximately caused by the treatment at VA, to include a failure to diagnose vascular ischemia in a timely fashion? If so, please describe the resulting injury or disability and explain how it was caused by VA treatment or failure to diagnose. The examiner is asked to specifically address the initial diagnosis of gout in November 2010, and any delay this may have caused in subsequent treatment. (b.) IF a disability or injury resulted from VA treatment, to include failure to diagnose, was that in turn caused by carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? If so, please provide a description of the type of fault and explain the basis for this determination. In answering this question, please address whether the accepted standard of care for a reasonable health care provider was followed. Please also address the significance, if any, of the Veteran’s private medical treatment during this time frame and of the fact that VA does not appear to have obtained copies of any records of this treatment for their own review during the November and December 2010 treatment period. (c.) Regardless of the answer provided to the questions above, please offer an opinion as to whether or not the injury and/or disability to the Veteran’s right leg and foot, to include the eventual amputation of his right great toe, was reasonably foreseeable. In addressing this, please indicate any factors that rendered the outcome either reasonably foreseeable or not reasonably foreseeable, and the point at which the outcome became reasonably foreseeable between the initial treatment in November 2010 and the eventual surgery in April 2011. If the record indicates that the Veteran was advised of the possible outcome at any point, please note that. Please provide a written, comprehensive explanation of the reasons or basis for the opinions and answers provided. If specific medical research or literature is used to formulate these opinions, please provide a copy of the applicable source document or the information/full citation necessary to view it. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Ahmad, 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.