Citation Nr: 21011696 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 11-10 421 DATE: March 2, 2021 ORDER Entitlement to compensation under the provisions of 38 U.S.C. § 1151, for status post spontaneous infection of the right second toe disability, claimed as due to delayed treatment for right second toe infection, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The evidence of record does not establish that the Veteran has any additional disability related to treatment for his right second toe infection, that was proximately due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by the VA in furnishing reasonable care; or that any additional disability was due to an event not reasonably foreseeable in furnishing the Veteran's VA medical treatment. 2. The Veteran’s service-connected disabilities do not prevent the Veteran from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation under the provisions of 38 U.S.C. § 1151 for status post spontaneous infection of the right second toe disability, claimed as due to delayed treatment for right second toe infection, have not been met. 38 U.S.C. §§ 1151, 5107 (2018); 38 C.F.R. § 3.361 (2021). 2. A TDIU due to the Veteran’s service-connected disabilities is not warranted. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1989 to April 1990. The Veteran’s claim was previously before the Board in March 2020 but was remanded for additional development. Specifically, the Veteran’s claim was returned to the Agency of Original Jurisdiction (AOJ) with directives to obtain a VA medical opinion regarding whether a physician exercising the degree of skill and care ordinarily required of the medical profession reasonably should have diagnosed the condition and rendered treatment, and if the Veteran’s current status post spontaneous infection of the right second toe disability could have been avoided if proper diagnosis and treatment had been rendered when the Veteran first reported the issues on April 6, 2010. An expert VA medical opinion was obtained an associated with the claims file in April 2020. Accordingly, the Board finds there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aires v. Peake, 22 Vet. App. 97, 105 (2008). In October 2012, the Veteran testified before a Veterans Law Judge at a Travel Board hearing held at the Little Rock Arkansas Regional Office. A transcript of that hearing is of record. Subsequently, the presiding Veterans Law Judge retired from the Board. Applicable law and regulations require that the Veteran’s Law Judge who conducts a hearing must participate in any decision made on that appeal. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. In correspondence dated May 2017, the Veteran was notified of the retirement of the Veterans Law Judge who presided over his October 2012 hearing, and he was offered the opportunity to be scheduled for another hearing. The Veteran did not respond or indicate a request for a new hearing. As such, the Board may proceed on the appeal. Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Contemporaneous records can be more probative than history as reported by a veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to compensation under the provisions of 38 U.S.C. § 1151, for status post spontaneous infection of the right second toe disability, claimed as due to delayed treatment for right second toe infection The Veteran is seeking compensation under 38 U.S.C. § 1151 for status post spontaneous infection of the right second toe, as an alleged result of untimely treatment for right second toe infection. More specifically, the Veteran contends that a right second toe infection was mis-diagnosed, and that he was not offered timely surgical treatment. Under VA laws and regulations, when a veteran experiences additional disability or death as a result of training, hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death was service-connected. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. For claims filed after October 1, 1997, a claimant is required to show fault or negligence in medical treatment. The Veteran filed his claim after that date in April 2010. Thus, he must show some degree of fault, and more specifically, that the proximate cause of her additional disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care or was an event not reasonably foreseeable. 38 U.S.C. § 1151 (a)(1); 38 C.F.R. § 3.361. In determining that additional disability exists, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b). Regarding medical or surgical treatment, a veteran's physical condition prior to the disease or injury is the condition which the medical or surgical treatment was intended to alleviate. Compensation is not payable if the additional disability or death results from the continuance or natural progress of the disease or injury for which the training, treatment, or hospitalization was authorized. 38 C.F.R. § 3.358 (b)(1), (2). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the Veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). 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). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361. Additional disability caused by a Veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). Carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault in VA hospital care or medical or surgical treatment is established when such care or treatment caused the Veteran's additional disability and VA either " failed to exercise the degree of care that would be expected of a reasonable health care provider" or furnished the hospital care or medical or surgical treatment without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1)(i), (ii). Alternatively, to establish that the proximate cause of a disability was an event not reasonably foreseeable, the evidence must demonstrate that a reasonable health care provider could not have foreseen the event. 38 C.F.R. § 3.361(d)(2). The event does not have to be "completely unforeseeable or unimaginable" but it must "be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided." 38 C.F.R. § 3.361(d)(2); see Schertz v. Shinseki, 26 Vet. App. 362, 367-69 (2013). 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 informed consent. 38 C.F.R. § 3.361(d). According to the applicable regulations, "informed consent" means consent that is freely given after a careful explanation by a medical practitioner of a proposed diagnostic or therapeutic procedure or course of treatment. See 38 C.F.R. §§ 3.361, 17.32. The practitioner must explain in language understandable to the patient the nature of a proposed procedure of treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. Id.; see McNair v. Shinseki, 25 Vet. App. 98, 107 (2011) (holding that "the failure to advise a patient of a foreseeable risk can be considered a minor, immaterial deviation under the regulation if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk"). VA treatment records and the Veteran’s August 2012 hearing testimony establish that on April 5, 2010, the Veteran reported to the VA medical for assistance with right foot swelling and pain. The Veteran testified that at the time he was informed by the VA nurse that he may have an infection in his right foot. On April 6, 2010, the treating VA physician diagnosed the Veteran with dermatophytosis, gout, and a secondary bacterial infection. The Veteran testified that he asked the VA physician to drain or “cut into” the swollen area. He further testified that the VA physician declined and instead treated the Veteran with anti-fungal and anti-gout medication. VA treatment records confirm the Veteran was seen and discharged with prescriptions for fluconazole and colchicine. The Veteran testified that following his discharge his symptoms continued to worsen. The Veteran contacted the VA medical center and was told to continue taking the prescribed medication. On April 10, 2020, the Veteran returned to the VA medical center with increased symptoms. On April 11, 2010, the Veteran’s swollen right second toe was opened at bedside and drained throughout the course of the day. The Veteran continued to receive treatment for the right second toe on April 12, 2010. The Veteran testified that while the operation was successful and completed correctly, it was the April 6, 2010 misdiagnosis of his right toe infection that resulted in the need for surgery and his current status post spontaneous infection of the right second toe. In April 2020, the VA obtained an expert medical opinion regarding the Veteran’s claim for compensation under the provisions of 38 U.S.C. § 1151. The medical opinion concluded that it was at least as likely as not the health providers exercised the degree of skill and care ordinarily required of the medical profession and reasonably diagnosed the condition and rendered treatment. The medical opinion reasoned: Records showed that the Veteran had initial right foot pain dating back in April 5, 2010, which was diagnosed with MRSA and was treated accordingly with antibiotics and with incision and drainage. Upon initial consultation of the Veteran at the emergency department, appropriate treatment had been given which included an anti-fungal and anti-gout medication, which was an appropriate treatment approach in relation to the health provider’s impression and Veteran’s presenting symptoms as shown in records. The rapid development of his infection and spontaneous nature was reasonable not expected by a competent physician following such a case. Records did not confirm any disability as a result of the treatment of the right foot condition. Hence, it is at least as likely as not proper diagnosis and treatment had been rendered when the Veteran first reported to the emergency department on April 6, 2010… Shown in records, upon initial encounter with Veteran there was noted right foot pain, erythema and swelling, diagnosed as Dermatophytosis, gout, secondary bacterial infection; Management involves treatment with anti-fungals and anti-gout medications. Veteran was seen again the following day due to persistence of condition and therefore referred to Ortho Service. He was immediately started on IV Antibiotics. MRI did not show involvement of bone as noted on [April 12, 2010]. [On April 14, 2010], [the Veteran was] diagnosed with Necrotic Foot. Records did not show evidence of undue treatment or improper management by the VA. Initial findings noted upon consultation at [e]mergency department had been noted and appropriate management had been employed. During this time, [the Veteran] was also immediately referred to Ortho service for further evaluation and treated accordingly. The rapid progression of the infection based on the records was not a common occurrence, and spontaneous infection was noted since there were no risk factors or etiologic agents responsible to have caused the infection. Overall, the medical opinion of record found that it is less likely than not that the Veteran's status post spontaneous infection of right second toe was caused by carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of VA or VA's failure to exercise the degree of medical care that would be expected of a reasonable health care provider. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the Veteran's claims for compensation under the provisions of 38 U.S.C. § 1151 must be denied. 2. Entitlement to TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran contends that his service-connected disabilities have prevent him from obtaining or following substantially gainful employment. Through various lay statements, the Veteran has asserted that his service-connected adjustment disorder, kidney disability, and back disability preclude him from employment. The Veteran has also asserted that his status post right second toe disability precludes him from employment. However, as a result of this decision, the Veteran’s status post right second toe disability is not service connected and cannot be considered for purposes of TDIU. A present, the Veteran is service connected for adjustment disorder (rated a 70 percent), chronic kidney disease (rated at 60 percent), degenerative disease (rated at 40 percent), hypertension (rated at 10 percent), degenerative joint disease (rated at 10 percent), right S1 radiculopathy (rated at 10 percent), and erectile dysfunction (rated as noncompensable). The Veteran also receives special monthly compensation for loss of use of a creative organ. The Veteran has a total combined disability rating of 100 percent as of April 2013. Accordingly, the Veteran meets the schedular criteria for TDIU. The granting of a 100 percent disability rating does not, in and of itself, extinguish a claim for TDIU. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Following review of the Veteran’s medical records, a March 2015 medical opinion determined that “[the Veteran] is employable from his service-connected disability, namely nephrosclerosis with chronic kidney disease and other service-connected problems.” A VA spine examination in July 2006 notes that the Veteran is working and takes break during work when his service-connected disability begins to flare-up. A March 2006 VA mental conditions examination notes that the Veteran is employed. The Veteran’s February 2014 VA kidney conditions examination notes that his kidney disability does not have any impact on his ability to work. The probative medical evidence of record does not contain a medical opinion or other medical evidence establishing that the Veteran’s service-connected disabilities prevent him from obtaining or following substantially gainful employment. At present, the probative medical evidence of record does not establish that the Veteran is unbale to obtain or follow substantially gainful employment as a result of his service-connected disabilities. Accordingly, entitlement to TDIU is not warranted. The Board concludes that the preponderance of the evidence is against the claim for TDIU. The benefit of the doubt rule therefore does not apply and entitlement to TDIU is not warranted. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, 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.