Citation Nr: 21014099 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-20 476A DATE: March 11, 2021 ORDER Entitlement to compensation pursuant to 38U.S.C. §1151 for a left foot amputation claimed as due to injury based upon VA fault is denied. Entitlement to service connection for the left foot amputation secondary to a service-connected disability is denied. FINDINGS OF FACT 1. The Veteran’s left leg amputation was not due to treatment at a VA facility. 2. The Veteran’s left leg amputation was not caused by or due to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a left foot amputation claimed as due to injury based upon VA fault have not been met. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361(b). 2. The criteria for service connection for a left amputation as secondary to a service-connected disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1984 to September 1986. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2011 rating decision from a Department of Veterans Affairs (VA) regional office (RO). In May 2016, the Veteran was afforded a hearing before the undersigned Veterans’ Law Judge. A transcript of this hearing is part of the record. In August 2016, the matter was remanded for additional development. The matter returned to the Board in October 2019; however, it was remanded a second time to obtain an additional medical opinion. All development requested has been substantially completed, and the matter has again retuned to the Board. 1. Compensation Based Upon VA Fault The Veteran seeks compensation pursuant to 38 U.S.C. § 1151 based on a lack of proper care and negligent treatment at a VA emergency room on September 24, 2010. The Veteran asserts that this lack of proper care led to his left lower leg amputation. Specifically, the Veteran asserts that the complication that resulted in the amputation of the left foot should have been observed and treated by VA. When a veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, compensated work therapy, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. Under 38 U.S.C. § 1151, compensation shall be awarded for a Veteran’s qualifying additional disability in the same manner as if such additional disability was service-connected. A qualifying disability is one which is not the result of a Veteran’s willful misconduct, and which was caused by hospital care, medical or surgical treatment, or examination furnished under any law administered by VA, and the proximate cause of the disability is carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination; or an event not reasonably foreseeable. 38 U.S.C. § 1151(a). Under 38 U.S.C. § 1151, three elements must be satisfied: (1) there must be an additional disability, (2) the disability was a result of VA treatment, and (3) a finding that the treatment was careless, negligent, preformed with a lack of proper skill, error in judgment, or a similar instance of fault on part of VA or the resulting disability was reasonably unforeseeable. 38 C.F.R. § 3.361(c). In this claim, the additional disability of a left foot amputation has been demonstrated. However, the evidence is not sufficient to show it was a result of VA treatment. To establish causation, the evidence must show that VA’s hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Merely showing that a veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 361(c)(1). Such VA treatment cannot cause the continuance or natural progress of a disease or injury for which such care 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 Veteran’s states that he received medical treatment on September 24, 2010, from a VA emergency department, for what he reported was left ankle pain. The Veteran testified that there was no examination of his foot, that they took an x-ray with his shoe on, told him it was arthritis, gave him pain medication, and sent him home. Less than two weeks later, on October 3, 2010, the Veteran presented at a private emergency department, again with left leg pain. There it was discovered the Veteran had an occluded left popliteal artery, which ultimately resulted in the amputation of the left leg below the knee. The Veteran testified that during his visit at the private emergency department, that the doctor called the VA emergency department upset that they had not diagnosed the condition. He also reports the doctor introduced him to a lawyer due to the perceived mistake by the VA. These lawyers, purportedly, declined to represent the Veteran in his claim. The Veteran argues that the VA failed to provide him an appropriate examination and treatment that would have diagnosed the occlusion of left popliteal artery and prevented amputation of the left leg, below the knee. The treatment records from September 24, 2010 contradict the Veteran’s testimony about the nature of his treatment at the VA emergency department. They document an examination of the left lower extremity noting achilles tenderness, no edema, and that it was neurovascularly intact. The x-rays taken showed there were some degenerative changes in the left foot. Pain medication was prescribed, and the Veteran was told to return if it worsened. On October 3, 2010, treatment records show the Veteran reported to the private emergency department and diagnosed with an ischemic foot. The next day the left popliteal artery occlusion was found. On October 14, the Veteran’s left foot was amputated. On October 19, the Veteran’s left leg below the knee was amputated. There is no record of the private emergency department doctor calling the VA emergency department. Nor is there a record of the private emergency department questioning the appropriateness of the treatment received at the VA emergency department. VA obtained a medical opinion regarding the treatment provided on September 24, 2010. The June 2017 opinion indicates that the Veteran’s presentation and examination at the time of the September 24, 2010 emergency department visit did not show any evidence of ischemia. It was noted that the Veteran reported ankle pain, when the popliteal artery is located in the knee. The opinion also states there was no reason to suspect vascular disease with the Veteran’s medical history at the time; in particular, a lack of a history of a hypercoagulable condition. The opinion specifically states there was not a misdiagnosis, nor was the Veteran’s eventual amputation of the left leg, below the knee, a result of the VA treatment An addendum opinion was obtained in March 2020, that stated the popliteal artery occlusion was most likely due to the Veteran’s use of cocaine, which is consistently documented in the record around the time of the event. This reasoning was supported by an analysis of the medical records that indicated the onset of the condition was acute, which was indicated by studies showing no abnormalities in the arteries other regions of the body. Whereas, an onset related to atheromatous plaques caused by diabetes mellitus or hypertension would have had a more gradual onset that took months and years. There would have been symptoms that indicated the process of occlusion was taking place. These symptoms, like claudication were not present in the Veteran’s history, to include the September 24, 2010 emergency department records which show a normal gait. This is consistent with the Veteran’s treatment records and is probative to the matter of determining the cause of the Veteran’s additional disability. While the Veteran believes he was not given the appropriate level of care at the VA hospital and that the popliteal occlusion should have been diagnosed, he is not a medical professional. Nor does he have any specialized training that would inform such a belief. His statements about certain events, in particular, the nature of the examination provided on September 24, 2010, are not consistent with the record. In contrast, a medical professional reviewed the claims folder and opined based on medical training and experience that the examination and treatment were appropriate. Further, a medical professional in March 2020 noted the Veteran’s popliteal occlusion was most likely due to event that took place after September 24, 2010, given the medical history and test results of the Veteran. The medical professionals’ opinions are afforded greater weight given the level of training and experience that informed the opinions and that they are more consistent with the record of evidence. Therefore, the weight of the evidence is against finding that the Veteran’s left leg amputation was due to VA treatment. Thus, entitlement to compensation under 38 U.S.C. § 1151 is not warranted. 2. Secondary Service Connection In the course of the Veteran’s claim for compensation under 38 U.S.C. § 1151, the issue of entitlement to service connection as secondary to service-connected hypertension and diabetes mellitus was reasonably raised. In particular, the June 2016 medical opinion referenced above indicated that popliteal artery occlusion that led to the Veteran’s left leg amputation, was a complication of atheromatous plaques, cocaine use, and a hypercoagulable condition. It continued to state that the causes of atheromatous plaques are hypertension, diabetes, family history, alcohol, cocaine, and tobacco use. The June 2016 opinion concluded that it was less likely than not that diabetes alone or peripheral neuropathy caused the popliteal artery occlusion. However, clarification in the form of an addendum opinion was requested in the Board’s October 2019 remand. As noted above, an addendum opinion obtained in March 2020, which reiterated the opinion that the Veteran’s popliteal occlusion was less likely than not proximately due to or aggravated by a service-connected disability, to include diabetes and hypertension. In contrast it was most likely due to the Veteran’s use of cocaine, which is consistently documented in the record around the time of the event. This reasoning was supported by an analysis of the medical records that indicated the onset of the condition was acute, which was indicated by studies showing no abnormalities in the arteries other regions of the body. Whereas, an onset related to atheromatous plaques caused by diabetes mellitus or hypertension would have had a more gradual onset that took months and years. There would have been symptoms that indicated the process of occlusion was taking place. These symptoms, like claudication were not present in the Veteran’s history, to include the September 24, 2010 emergency department records which show a normal gait. This is consistent with the Veteran’s treatment records. (Continued on the next page)   The March 2020 addendum opinion is the most probative evidence on this matter. It directly related to the development of the popliteal occlusion that resulted in left leg amputation. It also described the process by which it most likely developed. This process ruled out an occlusion related to, either proximately or by aggravation, to atheromatous plaques. As the atheromatous plaques were the only medical link identified between the left leg amputation and the service-connected conditions of hypertension and diabetes mellitus, the weight of the evidence is against finding the Veteran’s left leg amputation was secondary to a service-connected condition. Therefore, service-connection for the left amputated leg is not warranted. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Reed, 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.