Citation Nr: 21012152 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 13-00 270A DATE: March 3, 2021 ORDER Entitlement to disability compensation benefits under the provisions of 38 U.S.C. § 1151 for bilateral above the knee amputations is denied. FINDING OF FACT The preponderance of the evidence of record suggests that the Veteran’s additional disability resulting from bilateral above the knee amputations was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the surgery, and that the additional disability was not the result of an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for bilateral above the knee amputations have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1972 to December 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Entitlement to disability compensation benefits under the provisions of 38 U.S.C. § 1151 for bilateral above the knee amputations is denied. By way of background, the Veteran suffered a spinal cord injury from a 1988 motor vehicle accident resulting in paralysis, which is not service connected. The Veteran’s claim for benefits under 38 U.S.C. § 1151 stem from bilateral above the knee amputations of his bilateral lower extremities which were performed in November 2009. The Veteran’s claim has been before the Board three times previously: in March 2015, May 2017, and in June 2019. All three previous times, the Board remanded the claim. In sum and substance, the first two remands were in order to associate VA treatment records with the claims file. See Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The latter remand was to obtain a new opinion to adequately support an otherwise speculative statement in an inadequate June 2017 VA examination. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120 (2007). The Agency of Original Jurisdiction (AOJ) obtained a new etiological opinion in November 2019, and the Veteran was issued a Supplemental Statement of the Case (SSOC) in July 2020. The Board accordingly reasserts jurisdiction over the matter, and concludes that the Veteran has been afforded substantial compliance with all previous remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that arguments of the Veteran’s representative in the January 2021 Informal Hearing Presentation that the November 2019 VA examination did not consider the lay statements of the Veteran and his daughter. However, the November 2019 VA examination did explicitly consider the statements of the Veteran and his daughter, to include the Veteran’s contention that he went into a coma after being prescribed the incorrect antibiotic and the statements of his daughter that the Veteran’s feet were not checking on during his coma. This argument is therefore without merit. Additional Disability Element In September 2009, the Veteran presented at the VA Medical Center (VAMC) for treatment for septic shock and urinary sepsis. The Veteran and his daughter generally contend that he was outfitted with pressure boots to supply compression to his legs, which in turn led to required amputations. The Veteran contends that the additional disability was caused by negligence or other type of fault by VA, including that the informed consent procedures were not met or that the additional disability was an event not reasonably foreseeable, including the type of risk that would be communicated during the consent for the procedure. It is not in serious dispute that the Veteran has additional disability in the form of requiring bilateral above the knee amputations of his bilateral lower extremities. Thus, the additional disability element of the claim has been met. See 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361(b)-(d). Fault Element In November 2019, the AOJ forwarded the Veteran’s claims file to a medical examiner, who supplied an opinion as to whether the Veteran’s amputations were attributable to negligence of the VA Medical Center. See VA Exam ( Nov. 25, 2019 ). The November 2019 VA examiner noted that the Veteran was in septic shock with undetectable blood pressure at the time of the emergency medical services arrival to his residence, that this state necessitated the use of pressors during hospital stay until the Veteran was hemodynamically stable, that vasopressors are lifesaving agents used to raise mean arterial pressure in critically ill patients in shock states, and that pressors have been shown to increase the risk of infections, stimulate bacterial growth and the development of biofilms with interfere with treatment with antibiotics. The examiner noted that the Veteran was admitted with urinary sepsis and septic shock to the VAMC, that the mortality risk on admission was over 50 percent as reported by the medical literature, that the VA records provide evidence that the Veteran was properly cared for due to his complicated medical conditions. The examiner noted that the records show the presence of foul smelling blood urine for three to 14 days prior to admission, that the Veteran did not seek medical care due to a family situation, that he was started on pressors on admission due to evidence of urospesis and septic shock, that he later developed diseeminated intravascular coagulation (DIC) with microthrombosis and new necrotic skin changes on the abdomen and lower extremities, that there were changes in skin color and decreased pulses noted by the nurse, that sequential compression device (SCD) were used for deep vein thrombosis (DVT) prophylaxis because hematuria was present at the time of admission, that the Veteran was found to have stage 3 pressure ulcers on the bilateral feet on admission, that SCD were discontinued and Lovenox was prescribed as per vascular surgery consultant as the Veteran was noted to have a change in color in the lower extremities. There was no evidence of infection or peripheral arterial disease on admission nor was there contraindications present for SCD use. The November 2019 examiner found that throughout the hospital course, the Veteran was provided multidisciplinary care, respiratory support, physical therapy, speech therapy evaluation with barium swallow, psychology care, social workers assessment and support, daily nursing care, wound care with dressings and debridement, nutrition assessment, bowel care as well as timely consultations with podiatry, SCI, vascular surgery and plastic surgery. The examiner noted that required diagnostic tests were performed including laboratory studies, blood, urine and nares cultures, radiography, bone scan and arterial doppler. The examiner noted that the plan of care was discussed with the Veteran and his daughter, that proper administrative consents were obtained in a timely manner for placement of a central line and skin biopsy when the family was not present and could not be reached, and that proper communication between providers were noted per interdisciplinary care notes. The examiner noted that all treatment decisions were well justified as noted in the records such as contraindication for heparin use and prescription for SCD (compression boots) at the time of admission, DVT prophylaxis is a reasonable and widely accepted standard of care for critically ill patients in ICU settings due to a high risk of DVT with possible risk of pulmonary embolism with high risk of mortality. The use of pressors was properly administered at the admission due to severe hypotension as a life saving measure, the Veteran was weaned off of pressors when blood pressure improved and was hemodynamically stable. Although the use of pressors carries a risk of arterial ischemia, the withholding of therapy in order to avoid potential complications is not an acceptable choice in the settings of life-threatening condition of septic shock and severe hypotension. The November 2019 examiner thoroughly indicated the Veteran’s relevant medical history as pertaining to prior to amputation. This examiner opined that the Veteran’s additional disability is not due to the carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA when it provided surgical treatment. This examiner’s opinion is persuasive, because it is based on an accurate medical history with complete medical records, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner reviewed the file, including the surgery reports in question. The examiner also fully addressed the lay statements of record as to the sequence of events. In this case, the Veteran’s primary “fault” contention, through his, his representative, and his daughter’s collective statements, appear to be that because the Veteran was placed in pressure boots, amputation was then required. In other words, they attribute the pressure boots to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by the VA in furnishing medical treatment, and that the VA failed to exercise the degree of care that would be expected of a reasonable health care provider. See 38 C.F.R. § 3.361(d)(1)(i). The November 2019 examiner’s report provides great detail about the Veteran’s medical conditions. See VA Exam (Nov. 25, 2019), supra. The Veteran was paralyzed since 1988, and as recently as April 2009, the Veteran was diagnosed with a neurogenic bladder requiring catheterization, with recurrent urinary tract infections and severe urosepsis. See id. at Page 4. Upon admission in September 2009, the Veteran presented with evidence of urosepsis with septic shock and severe hypotension. Hypotension in turn causes decreased circulation of peripheral tissues. See id. Then, the Veteran was diagnosed with disseminated intravascular coagulation as a complication of sepsis, resulting in microthrombosis and requiring pressors to restore hemodynamic stability. Id. Finally, the Veteran was noted to have been a carrier of multi-drug resistant staphylococcus aureus (MRSA) and had generally poor nutrition on admission, which contributed to the Veteran’s poor ability to heal from ulcers and infected wounds. See id. at Pages 4-5. All of the above appears to have been properly notated. See generally id. In addition, the Veteran has alleged being given the wrong antibiotic medication and then being in a coma for five hours. The November 2019 VA examiner noted that the records are evident for diagnosis of sepsis and septic shock with respiratory failure and there are no records showing an allergic reaction to antibiotics. The Veteran also reported that this daughter told him that when he became unresponsive, that his legs changed color and that he had compression boots on all the time since admission. The Veteran further reported that he was informed by his daughter that nobody checked on his feet all the time he was in a coma, that when he woke up his legs were swollen and black in color from his toes to his knees, that there were open blisters on his heels and that there was nothing wrong with his feet prior to admission. The examiner noted that VA records report the presence of sacral and bilateral heel and left ankle pressure ulcers on September 26, 2009, that home care records report presence of left ankle, heel and sacral pressure ulcers prior to admission, that wound care consult performed on September 28, 2009 and that regular skin assessment and wound care was performed as per nursing notes and physician orders. The examiner further noted that SCD were used for DVT prophylaxis because of hematuria at the time of admission, that the Veteran was found to have stage 2 pressure ulcers of bilateral feet on admission and that SCD were discontinued and Lovenox was prescribed as per vascular surgery recommendation, when the Veteran was still intubated and unresponsive. The examiner noted that the Veteran was noted by a nurse to have a change in color of the lower extremities and this confirms that the Veteran's wounds were closely monitored and cared for. Ultimately, the Veteran appears to have required vasopressors as a lifesaving agent to raise mean arterial pressure in critically ill patients in shock states. See 38 C.F.R. § 17.32(b). There is no indication that the Veteran did not give consent freely or that he was otherwise coerced. The expected benefits were listed as were the risks, and there is no indication that the procedure was novel or unorthodox. See 38 C.F.R. § 17.32(c). Moreover, the consent was appropriately documented as the procedure required anesthesia. See 38 C.F.R. § 17.32(d). Other aspects related to signing with an “X,” needing surrogate consent, special consent situations, and advance healthcare planning are not applicable to the case. See 38 C.F.R. § 17.32(d)-(h). Considering all of this information, the Board finds that VA’s consent procedures were followed under 38 C.F.R. § 17.32. To the extent that the Veteran and his daughter may appear to have a different recollection of the events, the Board places greater weight on the examiner’s analysis of the medical records and the examiner’s conclusions as to the sequence of events and as to the medical necessity of each aspect of the Veteran’s care, compared to the Veteran’s recollection. See 38 C.F.R. § 3.361(d)(1)(ii). See also VA Exam (Nov. 25, 2019), at Page 6, cf. Lay Statement (Mar. 27, 2017) (rec’d Apr. 17, 2017 ). To the extent that there may be any remaining doubt that needed to have been resolved as of the June 2019 Board decision, the Board finds that the Veteran has been afforded substantial compliance with previous remand directives. See Stegall, supra. In November 2019, a VA examiner concluded that it is not at least 50 percent likely that the Veteran’s amputations were (a) caused by or became worse as a result of the VA treatment at issue; (b) resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel; (c) resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider; and/or (d) constituted failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability, allowing the disease or disability to continue to progress. The Board therefore finds that the additional disability was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing the November 2009 surgery. As such the fault element of the claim has not been met. See 38 U.S.C. § 1151(a)(1)(A); 38 C.F.R. § 3.361(d)(1). Foreseeability Element In considering the Veteran’s claim for entitlement to benefits under 38 U.S.C. § 1151, the Board has also considered the contentions under the foreseeability element, which does not involve a fault component. As noted above, the November 2009 examiner concluded that the Veteran was prone to ulcers on the lower extremities that would be impaired in ability to heal, on account of the Veteran’s paralysis. In short, the Veteran presented with sepsis, and the pressure boots were necessary in order to attempt to restore hemodynamic stability; however, ultimately, even though the Veteran survived sepsis with a more than 50 percent mortality rate, it was not unforeseeable that amputation of the bilateral lower extremities would ultimately be required. As recounted above, the Board assigns great probative weight to the November 2019 examiner’s opinion. The Board therefore finds that the additional disability was not the result of an event not reasonably foreseeable. As such, the foreseeability element of the claim has not been met. See 38 U.S.C. § 1151(a)(1)(B); 38 C.F.R. § 3.361(d)(2). Conclusion In sum, although the Veteran experienced additional disability as a result of the November 2009 surgery, neither of the other two elements of the claim that would allow for compensation under 38 U.S.C. § 1151 has been met. For all of the reasons articulated above, the Board concludes that the Veteran has been afforded substantial compliance with all previous remand directives. See Stegall, supra. Finally, the Board considered the benefit-of-the-doubt rule. However, because the preponderance of the evidence is against the Veteran’s claim for compensation under 38 U.S.C. § 1151 for status post bilateral amputation, the benefit-of-the-doubt rule is not applicable, and thus, such compensation is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, Associate 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.