Citation Nr: 21022389 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-42 285 DATE: April 15, 2021 REMANDED Entitlement to VA benefits under 38 U.S.C. § 1151 for decubitus ulcers (bedsores) as a result of treatment rendered at the VA Medical Center (VAMC) in Houston, Texas from February 2014 to July 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1978 to July 1981. This matter comes to the Board of Veterans' Appeals (Board) from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In February 2019, the Veteran presented oral testimony in support of his appeal at a Board hearing conducted by a Veterans Law Judge. The transcript of this February 2019 Board hearing is associated with the record. In a December 2020 letter, the Veteran was notified that the VLJ who conducted the February 2019 hearing was no longer with the Board and that the Veteran would be afforded the opportunity to appear at another hearing if so desired. The Veteran responded to this letter in the negative in February 2021; therefore, the Board will consider the claim based on the evidence of record. 1. Entitlement to VA benefits under 38 U.S.C. § 1151 for decubitus ulcers (bedsores) as a result of treatment rendered at the VAMC in Houston, Texas, from February 2014 to July 2016 is remanded. By way of history, the Veteran was involved in an April 2010 motor vehicle accident that resulted in paraplegia from the level of thoracic vertebrae down and permanent colostomy and neurogenic urinary bladder, among other complications. The Veteran was admitted to the VAMC in Houston, Texas, in February 2014 and underwent a colonoscopy, which confirmed the presence of a fistula and purulent drainage. The above-noted hospitalization was prolonged from February 2014 until July 2016 due to multiple complications, including diabetes mellitus, type II, and treatment for sepsis. Particularly, the Veteran developed decubitus ulcers (bedsores) in late-April 2014 which progressed throughout the hospitalization, necessitating several surgeries, and resulting in severe infection and scarring. The appeal before the Board involves the Veteran’s assertions that these bedsores and resulting complications represent an additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing medical care or an event that was not reasonably foreseeable. In the June 2019 remand, the Board noted the facts above and requested medical opinions addressing the unique legal framework of claims and appeals brought under the provisions of 38 U.S.C. § 1151. Specifically, the Board asked the VA clinician if the decision to discontinue the pressure ulcer prevention protocol in late-March and early-April 2014 could be considered carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in light of VA treatment notes dated prior to and after this period showing that the Veteran was at “high” and “moderate” risk for pressure sores due to his extensive disability picture. In addressing this point, the examiner was asked to consider, and reconcile his or her findings, with a specific piece of medical literature indicating that bedsores are mostly avoidable and often arise due to quality of care issues. In response to the Board’s June 2019 remand, the Veteran was provided a VA examination conducted by a clinician, who opined that “the accepted appropriate protocols were followed, and the standard of care was met in this case.” In support of this opinion, the VA clinician acknowledged the Veteran’s paraplegia and diabetes mellitus, type II, and stated that, in view of the Veteran’s “extensive hospitalization and complicated comorbidities, it was inevitable that at some point skin breakdown would occur[.] [N]evertheless, appropriate protocols and treatment was followed.” The Board acknowledges the April 2020 VA opinion; however, the Board concludes that such is inadequate for the purpose of readjudicating the Veteran’s appeal. Specifically, the VA clinician’s April 2020 opinion and statement does not address VA’s decisions to discontinue the pressure ulcer prevention protocol in late-March and early-April 2014 despite contemporaneous evidence that he was at “high” and “moderate” risk for pressure sores and whether such represented VA’s negligence or fault in light of the medical literature noted in the June 2019 remand. In essence, while the Board notes that April 2020 VA opinion was unfavorable to the Veteran’s appeal, the specific questions posed by the Board in June 2019, which must be addressed in totality in appeals for benefits sought under 38 U.S.C. § 1151, remain unanswered. In light of above, the Board concludes that another remand is necessary in order to obtain additional medical opinions that adequately address the Veteran’s appeal for benefits under the unique legal criteria provided by 38 U.S.C. § 1151. The matters are REMANDED for the following actions: 1. The AOJ must transfer the Veteran’s file to an appropriate VA clinician other than the April 2020 VA examiner. The entire file, including a copy of this remand, should be made available to and be reviewed by the examiner in conjunction with this request. Thereafter, the examiner should specifically address the following questions: a. Is it at least as likely as not that the Veteran’s decubitus ulcers and resulting complications due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA administering treatment? *In addressing the above, the clinician must consider and discuss whether the VA acted reasonably in deciding to discontinue the pressure ulcer prevention protocol in late-March and early-April 2014 despite contemporaneous evidence that he was at “high” and “moderate” risk for pressure sores. *The requested opinion must also must consider and be reconciled with the medical literature indicating that bedsores are mostly avoidable and often arise due to quality of care issues (Erwin A. Kruger et al., Comprehensive management of pressure ulcers in spinal cord injury: Current concepts and future trends, The Journal of Spinal Cord Medicine, 572-585 (Nov. 2013) (available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3831318/)). *To show fault, it must be shown that VA failed to exercise the degree of care that would normally be expected of a reasonable health care provider, or that VA furnished such care without the Veteran's informed consent. 38 C.F.R. § 3.361(d)(2). b. If the Veteran’s bedsores were not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, was the disability at least as likely as not the result of an event that was not reasonably foreseeable? Essentially, the Board is asking if a reasonable health care provider would have considered the bedsores to be an ordinary risk of the Veteran’s treatment regimen in March 2014 and April 2014. *In addressing the above, the examiner is asked to specifically address the VA medical professionals’ choice to discontinue the pressure ulcer prevention protocol in late-March and early-April 2014 despite contemporaneous evidence that the Veteran was at “high” and “moderate” risk for pressure sores. The clinician should provide a complete rationale for all opinions rendered. The clinician should specifically discuss the pertinent evidence of record, to include the Veteran's assertions described in this remand. If the clinician finds that he or she cannot provide any opinion without resorting to speculation, the clinician must explain why he or she is unable to provide an opinion without speculation, and sufficiently explain the reasons for that inability. *If the VA clinician believes that a physical examination of the Veteran is necessary to address the above, such must be scheduled, and the Veteran must be provided notice of the time and place to appear. 2. Thereafter, the AOJ must readjudicate the issue on appeal. If the benefit is not granted to the fullest extent, the Veteran and his representative must be furnished with a copy of the readjudication and be afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.