Citation Nr: 21013390 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 18-14 610 DATE: March 9, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for left leg infection residuals, claimed as left leg pain and spasms, is denied. Entitlement to compensation under 38 U.S.C. § 1151 for memory loss is denied. REMANDED Entitlement to service connection, to include compensation under 38 U.S.C. § 1151, for bilateral hearing loss is remanded. Entitlement to service connection, to include compensation under 38 U.S.C. § 1151, for tinnitus is remanded. Entitlement to service connection, to include compensation under 38 U.S.C. § 1151, for loss of smell is remanded. FINDINGS OF FACT 1. The Veteran’s left leg pain and spasms did not result 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. 2. The Veteran’s memory loss did not result 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. CONCLUSIONS OF LAW 1. The criteria for compensation benefits under the provisions of 38 U.S.C. § 1151 for left leg infection residuals, claimed as left leg pain and spasms, have not been met. 38 U.S.C. §§ 1151, 5103A, 5107; 38 C.F.R. § 3.361. 2. The criteria for compensation benefits under the provisions of 38 U.S.C. § 1151 for memory loss have not been met. 38 U.S.C. §§ 1151, 5103A, 5107; 38 C.F.R. § 3.361. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1964 to January 1967. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 rating decision by a Department of Veterans Affairs Regional Office (RO). In December 2020, the Veteran testified at a Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. The Board held the record open for 60 days for the Veteran to submit additional relevant evidence. 1151 Eligibility Under VA laws and regulations, when a Veteran suffers additional disability 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 was service connected. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. The Veteran must show some degree of fault, and more specifically, that the proximate cause of his disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of 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, examination, training and rehabilitation services, or compensated work therapy program 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). To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran’s additional disability. Merely showing that a Veteran received care, treatment, or examination and that 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 diagnosis and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). 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). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran’s additional disability, it must be shown that VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or, that VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran’s informed consent. 38 C.F.R. § 3.361(d)(1). Whether the proximate cause of a Veteran’s additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but 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). 1. Left Leg Condition The Veteran asserts he is entitled to compensation for a left leg condition pursuant to 38 U.S.C. § 1151. Specifically, the Veteran asserts that his left leg condition, noted as left leg pain and spasms, resulted from treatment for a seizure disorder. During such treatment, he received an IV in his right arm which later became infected resulting in a septic left knee. As a result of that infection, the Veteran asserted that he developed his current left knee condition. See December 2020 Board Hearing Transcript. The evidence includes an August 6, 2011 record from The University of Kansas Hospital (UKH). The record shows the Veteran’s spouse reported he drank a half pint of gin the previous afternoon and that he drank one glass of gin daily. That night, the spouse reported being awaken in the morning due to the Veteran jerking and that he was convulsing for approximately 5 minutes with his arms flexed, incontinent of urine and that he had blood coming from his mouth. In addition, it was noted that the Veteran was unresponsive at that time. It was also noted that EMS arrived at their home at which time the Veteran was in a postictal state. The Veteran denied any memory of the event and currently reported feeling fine and denied any dizziness, weakness, numbness, tingling or visual disturbance. The Veteran was noted to have no history of seizures or recent infection. The Veteran was diagnosed with a seizure and discharged. See Private Medical Records Received July 2017. Thereafter, an August 6, 2011 VA medical record shows the Veteran was seen for a neurological assessment. The record noted the Veteran had previously been seen at UKH where he was discharged, and that he wanted to receive treatment at VA. He complained of having a seizure that morning and that he had no memory of the event. An addendum record noted the Veteran had early stage dementia. A past medical history noted active problems including dementia and Alzheimer’s disease. An IV was started in the right arm. The Veteran was started on Dilantin. See VA Medical Records Received July 2017. Another August 6, 2011 VA medical record assessed the Veteran with new onset seizure, possibly due to alcohol withdrawal. The Veteran was diagnosed with a seizure disorder. VA medical records shows the Veteran was discharged. See VA Medical Records Received May 2017. On August 17, 2011, a VA medical record shows the Veteran was seen in the emergency department complaining of progressively severe left knee pain and swelling over the past 4 to 5 days. The Veteran reported that he noticed redness and swelling at his IV site. He also complained of a fever and chills since the previous night. The Veteran was assessed with a septic joint. Another August 17, 2011 VA medical record shows the Veteran was transferred directly to the operating room at the UKH. See VA Medical Records Received July 2017. An August 17, 2011 UKH medical record shows the Veteran was admitted for left septic knee arthritis and taken to the operating room where he had an arthroscopic irrigation and debridement of his left septic knee. Two days later, the Veteran was again treated for some residual infection. It was decided he would be transferred back to VA once he was stable. The likely source of his infection was found to be a previous cellulitis/abscess of his right upper extremity over the IV site. See Private Medical Records Received July 2017. Another August 2011 UKH record noted the following timeline. On Saturday, August 2, the Veteran began having knee pain. The following day he stated that his knee pain worsened, and he developed swelling. On Monday, August 4, the Veteran reported that he was not feeling better and he called his primary care provider at VA, and went in to see him on Wednesday, August 6. In addition, the Veteran reported that two weeks prior to his admission, his IV access site had become infected and swollen with pus draining out. When he arrived on August 6, his temperature was 104.1. See Private Medical Records Received July 2017. In September 2011, a VA medical record shows the Veteran reported that he sometimes had jerking of his leg. He reported that his leg jerking symptoms began 10 years prior, and that he had been seen by an outside medical provider who told him it was spasms. Thereafter, in February 2012, the Veteran complained of left knee spasms. See VA Medical Records Received July 2017. The Veteran complained of left knee spasms again in October 2013. The Veteran reported that his spasms had been ongoing for a little over a year. The physician noted several muscle spasms during the interview and examination. A November 2013 VA medical record shows the Veteran reported that he had painful left knee spasms that began in 2011 following surgery on his knee due to an infection. See VA Medical Records Received July 2017. The Veteran underwent an EK-EED study in December 2013. The neurologist noted a history of spasms affecting the extremities, and that periods of leg spasms were noted during the study, especially involving the left leg. During periods of jerking, the Veteran’s was noted to have muscle artifact that was also noted in the electroencephalogram. The neurologist found that the EED did not exclude a movement disorder or epileptic disorder. See VA Medical Records Received July 2017. In July 2015, a VA medical record noted left leg spasms. At that time, segmental myoclonus was suspected which developed after the previous left leg infection. See VA Medical Records Received July 2017. In a February 2017 VA Form 21-4138, Statement in Support of Claim, the Veteran reported that in 2011, he had a seizure and was taken to the VA hospital. While there, he reported that an IV in his right arm had caused an infection in his left leg resulting in three operations. Since then, he reported having painful left leg spasms. A more recent May 2017 VA medical record noted an assessment for a seizure disorder and that the Veteran followed with neurology. The etiology of the seizure disorder was unclear, but noted as possibly due to previous alcohol abuse or use of Tramadol. See VA Medical Records Received July 2017. A VA medical opinion was obtained in July 2017. The examiner noted that the Veteran was treated for a seizure on August 6, 2011. In this regard, the examiner noted that the seizure occurred after the Veteran drank a half pint of gin the previous night. It was also noted that the Veteran had been started on a cholesterol medication the week prior due to an elevated CPK, and that the medication was stopped. The examiner noted that the Veteran’s seizure was not thought to have been due to the cholesterol medication, but found consistent with having a generalized seizure disorder. In addition, the examiner noted that the VA hospital provided care consistent with seizure treatment including a CT scan, EEG and anti-seizure medication via IV. The Veteran was noted to have been discharged on August 9, 2011, with no indication of any infection. The examiner noted that the Veteran developed an infection with the infection source shown consistent with skin IV access site as demonstrated by cultures taken. A subsequent septic knee was noted to have developed which was found probably due to the infection as there was no other source of possible infections. The Veteran was noted to have initially sought treatment for the IV infection and knee problems on August 17, 2011, two days after he reported the onset of the infection. In this regard, the examiner noted that the record did not show that care had been sought prior to this date which was found to have led to the infection progressing into the knee. The examiner also noted that IV site infection was a normal risk of receiving treatment and that there was no indication of any inappropriate care throughout the Veteran’s treatment. Once he was seen in the VA emergency room, it was noted that the Veteran was sent emergently to a private hospital where he was admitted and treated. Based on the evidence cited above, with regard to the Veteran’s left leg symptoms of spasms, the examiner found that they were etiologically related to the original neurological disorder, and not etiologically related to the IV site infection. Accordingly, the examiner opined that the Veteran’s left leg problems were not due or the result of VA care or treatment. Additionally, the examiner opined that there was no indication that VA provided inappropriate standard of care. Finally, the examiner opined that there was no indication of any additional disability that resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider and/or 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. Lastly, at a December 2020 Board hearing, the Veteran’s spouse testified that in August 2011, he had a seizure and was initially transported to a private hospital, and was then transported to a VA hospital where he was examined and moved into intensive care where he stayed for approximately 3 days. The spouse stated that a cause for the actual seizure could not be found. During that time, the spouse stated that the Veteran had an IV in his right arm and that nurses kept coming in to adjust the IV because an alarm kept sounding. After his release, the spouse stated that each day the IV entry site became increasingly swollen and “full of infection.” Thereafter, she stated the Veteran began to complain that his head hurt, his body hurt, that his left leg swelled around his knee and ankle and that he was sick and running a high temperature. Thereafter, she testified she brought him back to VA where they started draining his left leg, and then transferred him to UKH where was diagnosed with sepsis which had set all the way to the Veteran’s brain stem. The spouse further stated that the Veteran was later transferred to another VA hospital where his left leg and IV site infections were treated over an approximately two month period. With regard to his left leg, the Veteran testified that since his August 2011 VA hospital treatment, he had constant left leg pain and spasms. He also reported that when he stood up, he had to shake his leg prior to walking. Initially, the Board notes that the threshold element for 38 U.S.C. § 1151 compensation, the presence of a qualifying additional disability, has been met in this case. The record establishes that the Veteran has left leg pain and spasms. The remaining question is whether his left leg condition was proximately caused by VA’s care, treatment, or lack thereof. In this regard, the Board finds that the weight of the evidence does not establish that the Veteran’s left leg condition is due to treatment received at a VA medical center, to include a right arm IV site and left knee infections. As noted above, to establish causation, evidence must show that VA medical treatment resulted in the Veteran’s additional disability. Merely showing that a Veteran received care, treatment, or examination and has additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). 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(d). However, the Board notes that contemporary VA medical records show that the Veteran’s leg spasm condition began well before August 2011. In this regard, the Board finds most probative the September 2011 VA medical record showing the Veteran reported that his lower extremity jerking symptoms had begun approximately 10 years prior, as well as his statement that he had been seen previously by an outside medical provider who had told him his leg condition was spasms. The Board further finds most probative the July 2017 VA medical opinion. The examiner considered the evidence of record, but, based on that evidence, concluded that the left leg symptoms were not etiologically related to the IV site infection and subsequent septic knee. Instead, the examiner concluded that the left leg symptoms were etiologically related to the underlying neurological disorder that had caused the Veteran’s seizure disorder. The examiner further found no evidence that VA did not provide the appropriate standard of care, and found no indication that the left leg condition resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider or failure on the part of VA to timely diagnoses or properly treat the condition allowing for the infection to continue to progress. In this regard, the examiner found that VA provided care consistent with seizure treatment, including use of an IV to administer medication, and that there was no indication of an infection at the time the Veteran was initially discharged from VA care. Instead, the examiner noted that the Veteran developed an infection and did not seek treatment for at least two days after the infection had set in. By the time the Veteran did seek treatment, the infection had progressed to his left knee. With regard to the initial onset of infection, the examiner noted that IV site infection was a normal risk of receiving treatment and that there was no indication of any inappropriate care provided by VA. The Board recognizes that the Veteran and his spouse are competent to report on that which they have personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in the present case, while the Veteran and his spouse have reported left leg pain and spasms since his August 2011 treatment for an IV site infection and septic left knee, as noted above, the medical records evidence that the condition had been present approximately 10 years prior to such treatment. Accordingly, in the event the Veteran is asserting that his symptoms first began following the August 2011 VA treatment, the Board finds him to be an unreliable historian and little probative value is assigned any such inference. Thus, the weight of the evidence of record supports the conclusion that the Veteran’s left leg condition is not due to VA’s carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. Additionally, the Board finds that the development of the Veteran’s IV site infection cannot be said to have been reasonably unforeseeable. 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Memory Loss The Veteran asserts he is entitled to compensation for a memory condition pursuant to 38 U.S.C. § 1151. Specifically, the Veteran asserts that he developed a memory condition as a result of treatment for a seizure disorder. Specifically, the Veteran asserts that during such treatment, he received an IV in his right arm which later became infected, and that such infection spread to his brain stem. See December 2020 Board Hearing Transcript. The evidence of record includes a January 2011 VA medical record noting a diagnosis for dementia and Alzheimer’s disease. A July 2011 VA medical record lists the date of onset of the Veteran’s dementia and Alzheimer’s disease in August 2010. The Veteran was noted to have recent memory problems. In August 2011, the Veteran reported that he suffered from memory loss for the past year. See VA Medical Records Received May 2017. An August 6, 2011 VA medical record shows the Veteran was seen for a neurological assessment. The record noted that the Veteran had previously been seen at UKH where he was discharged, and wanted to receive treatment at VA. He complained of having a seizure that morning. The Veteran had no memory of the event. An addendum record noted that the Veteran had early stage dementia. A past medical history noted active problems including dementia and Alzheimer’s disease. An IV was started in the right AC. The Veteran was started on Dilantin. In a February 2017 VA Form 21-4138, Statement in Support of Claim, the Veteran reported that in 2011, he had a seizure and was taken to the VA hospital. While there, he reported that an IV in his right arm had caused an infection in his left leg resulting in three operations. Since then, he reports having slight memory loss. At a December 2020 Board hearing, the spouse testified that the Veteran’s left knee sepsis had set all the way to the Veteran’s brain stem. As a result of his initial stay in the VA hospital in August 2011, the Veteran and his spouse asserted that the Veteran developed memory loss. In addition, the Veteran and his spouse asserted that the Veteran did not have memory loss prior to that time. The Board notes that the threshold element for 38 U.S.C. § 1151 compensation, the presence of a qualifying additional disability, has been met in this case. The record establishes that the Veteran has been diagnosed with dementia and Alzheimer’s disease, with memory loss also noted in the medical records. Therefore, the remaining question is whether his memory loss was proximately caused by VA’s care, treatment, or lack thereof. In this regard, the Board finds that the weight of the evidence does not establish that the Veteran’s memory loss is due to his IV site infection or subsequent septic left knee. Specifically, a review of the Veteran’s medical records clearly show he was diagnosed with dementia and Alzheimer’s disease at least as early as January 2011; prior to the August 2011 VA treatment the Veteran asserts caused his memory loss. In addition, the Veteran was noted to have recent memory problems prior to August 2011. Therefore, as the onset of the Veteran’s dementia and Alzheimer’s disease with memory loss clearly predated his August 2011 VA treatment, it cannot be said that his memory problems resulted from VA’s carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault. The Board further finds probative the July 2017 VA medical opinion noted above which found no indication that VA provided inappropriate standard of care, or indication of any additional disability that resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, or 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 recognizes that the Veteran and his spouse are competent to report on that which he has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, in the present case, while the Veteran and his spouse have reported that the Veteran did not have memory loss prior to his August 2011 VA treatment, those statements are directly contradicted by the medical records showing a diagnosis for dementia and Alzheimer’s disease well before that time period. In addition, that assertion is also directly contradicted by prior statements provided by the Veteran, who, in August 2011, stated that he had memory loss for the past year. Accordingly, the Board finds the Veteran and his spouse to be unreliable historians and little probative value is assigned to their statements regarding the onset of the Veteran’s memory loss. The Board acknowledges that the Veteran has not been afforded a VA examination that specifically addresses his 1151 claim for memory loss, but finds no such examination was required because the evidence does not indicate that the claimed disability, or symptoms thereof, may be associated with treatment provided in August 2011. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As discussed above, the Board finds that the evidence of record clearly establishes that the onset of the claimed disability occurred prior to the treatment the Veteran asserts precipitated his memory problems. Therefore, the Board finds a VA medical opinion is not necessary to decide this claim. 38 C.F.R. § 3.159(c)(4)(i)(C). Thus, absent credible evidence showing the development of the Veteran’s memory loss occurred following his August 2011 VA treatment, 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND 1-3. Bilateral Hearing Loss, Tinnitus and Loss of Smell The Board notes that with regard to the Veteran’s bilateral hearing loss, tinnitus and loss of smell claims, the September 2017 rating decision addressed the issues on the basis of entitlement to service connection. However, during the December 2020 Board hearing, the Veteran asserted that he developed hearing loss, tinnitus and loss of smell as a result of an IV site infection that occurred following treatment for a seizure in August 2011. Specifically, during the Board hearing, it was noted that the Veteran intended to have the issues of hearing loss, tinnitus and loss of smell considered under the provisions of 1151, and that service connection on a direct basis was considered in error. Accordingly, the Board finds that a remand is necessary for the Agency of Original Jurisdiction (AOJ) to consider the claims under the provisions of 1151 in the first instance. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Then, the AOJ must adjudicate the issues on entitlement to compensation under 38 U.S.C. § 1151 for bilateral hearing loss, tinnitus and loss of smell. If the benefits sought remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.