Citation Nr: 21029308 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-51 644 DATE: May 13, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for right leg hematoma and nerve damage is denied. FINDING OF FACT The preponderance of the evidence indicates that the Veteran's right leg hematoma and nerve damage were not caused as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment or as a result of an event not reasonably foreseeable. CONCLUSION OF LAW The criteria for entitlement to compensation under 38 U.S.C. § 1151 for right leg hematoma and nerve damage 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 had active military service from February 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a November 2020 hearing before the Board of Veterans' Appeals (Board). In November 2020, the Board remanded this claim for additional development. The Board finds that the RO substantially complied with its remand directives, and the Board may now proceed with adjudication. 1. Entitlement to compensation under 38 U.S.C. § 1151 for right leg hematoma and nerve damage The Veteran asserts that his right leg hematoma and nerve damage were caused as a result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment or as a result of an event not reasonably foreseeable. In order to warrant compensation under 38 U.S.C. § 1151, it must be demonstrated that the VA treatment in question resulted in additional disability and that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the surgical treatment, or that the proximate cause of the additional disability was an event that was not reasonably foreseeable. VAOPGCPREC 40-97, 63 Fed. Reg. 31,263 (1998). To determine whether the veteran has additional disability, 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 (CWT) program upon which the claim is based to his condition after such care, treatment, examination, services, or program has stopped. Each involved body part or system is considered separately. 38 C.F.R. § 3.361(b). With regard to the former element, it must be shown that VA's care, treatment, or examination caused the veteran's additional disability and VA failed to exercise the degree of care that would be expected of a reasonable health care provider or VA furnished such VA care, treatment, or examination without the veteran's informed consent. 38 C.F.R. § 3.361(c) and (d). Regarding the latter, the United States Court of Appeals for Veterans Claims (Court) has clarified that the standard is not actual foreseeability or possible foreseeability, but that the test is driven wholly by how a "reasonable health care provider" would behave if asked to perform a certain procedure on a veteran with the same characteristics as the veteran in a given case. See Schertz v. Shinseki, 26 Vet. App. 362 (2013). 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. 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 the informed consent procedures of § 17.32 of this chapter. 38 C.F.R. § 3.361(d)(2). The questions for the Board are whether the Veteran has a current disability that is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing medical care, or from an event not reasonably foreseeable. In this case, VA treatment records reflect treatment for peripheral neuropathy due to diabetes in May 2016 and as early as August 2013. VA treatment records reflect the Veteran experienced a right leg hematoma on August 3, 2017. See, e.g., September 2017 VA treatment record. The Veteran filed a claim for compensation under § 1151 in March 2018. The Veteran stated that his leg was injured to the negligent use of a "Hoyer lift" while he was being transported for medical treatment, which caused pain, swelling, and bruising. He asserted that he had been unable to walk on the leg since that incident. In a July 2018 statement in support of his claim, the Veteran asserted that negligence on the part of VA's treatment providers had caused nerve damage to his right leg, which caused inability to walk. August 2018 VA treatment records reflect a VA physician concluding that the Veteran's right lower extremity weakness was due to his diabetic amyotrophy and generalized peripheral neuropathy. In a February 2020 letter to Congress, the Veteran asserted that his injury occurred due to the negligence and improper use of a hydraulic patient lift by VA staff. During the Veteran's October 2020 Board hearing, the Veteran testified before the Board along with his care provider. During the hearing, the Veteran repeated his assertion that his right leg injuries and nerve problems were due to the negligent use of a hydraulic patient lift by VA medical staff. After his asserted injury, he experienced pain and numbness in his right leg and was confined to a wheelchair. His care provider testified that she assisted the Veteran with many basic daily activities that he was unable to perform on his own. As an important aside, the Board notes that the Veteran's contentions were entirely focused on the lift incident, and neither here nor anywhere else in the record has he asserted that a different VA-related cause, such as the prescription of medication, led to additional disability as a result of negligence or other fault or a result not reasonably foreseeable. The Board has thus focused its analysis in this section 1151 claim exclusively on the lift incident. During the Veteran's February 2021 VA examination for skin conditions, the VA examiner noted that he was positive for right leg hematoma, status post debridement, which was diagnosed in 2017. During the hospitalization, the Veteran developed a right leg hematoma, which ruptured and required operative debridement. The condition resolved after the operation. During the Veteran's February 2021 VA examination for scars/disfigurements, the VA examiner noted that he had a scar on his right leg as a result of the surgical operation to treat his right leg hematoma. The scar had stayed the same since its onset in 2017 and was neither painful nor unstable. During the Veteran's February 2021 VA examination for diabetic sensory-motor peripheral neuropathy, the examiner noted that he had been diagnosed with diabetic peripheral neuropathy in 2017. The condition had worsened over time, caused numbness, tingling, and pain, and was treated with Gabapentin and Insulin. In an accompanying February 2021 VA medical opinion, the examiner offered the following opinions. The Veteran's right leg hematoma was less likely than not related to his active service, as the condition occurred in 2017, many years after active service. The examiner also opined that it was less likely than not that the Veteran's right leg hematoma and nerve damage were caused by or became worse as a result of the VA treatment in question. The examiner stated that the Veteran had multiple medical issues prior to his presentation to the Durham VAMC, including atrial fibrillation, for which he was on anticoagulation. This predisposed him to easy bruising and hematoma formation. Although the Veteran asserted that his right leg hematoma was due to him getting hit on the leg as he was being transferred using a Hoyer lift, there was no evidence of such an injury in the medical records. Medical records dated September 2017 from the Durham VAMC noted the Veteran sustaining a hematoma to the right leg during his stay at the Durham VAMC; it was noted that the Veteran sustained a hematoma after a fall. While the fall did occur during his stay at the VAMC, there was no evidence in the medical records that there was any negligence or fault that caused the fall. The examiner also found that there was no additional disability on account of VA treatment or surgery. The examiner noted that a general surgery clinic note dated June 2017 reflected the Veteran taking Warfarin due to paroxysmal atrial fibrillation. The Veteran was switched from Warfarin to heparin due to the upcoming surgery. Subsequent medical records prior to surgery noted he developed multiple hematomas on his body due to the heparin injections. Both Warfarin and heparin are anticoagulants that predispose patients to hematoma formation. Therefore, the examiner found that the hematoma was due to the medications that the Veteran was taking, which were present prior to the surgery in June 2017. Furthermore, there was no evidence that the hematoma or the debridement caused any nerve damage. There was clear evidence in the medical records that the Veteran suffered from diabetic neuropathy prior to his admission to the Durham VAMC. See August 2013 VA treatment records. Medical records from August 2018 noted that the Veteran's right lower extremity weakness was due to right lower extremity diabetic amyotrophy and generalized peripheral neuropathy. Therefore, the examiner concluded that the condition was unrelated to the right leg hematoma or the surgical debridement. While the VA examiner did not offer conclusions and rationales for the Board's November 2020 remand directives' subsections (b) through (e), these questions only needed to be addressed if the examiner found that there was additional disability due to VA treatment or surgery. The examiner did not find that there was such an additional disability. Consequently, there was no need to address the questions of whether the existing additional disability was at least as likely as not due to: (1) VA surgery, (2) follow up treatment, including the movement of the Veteran by his care team, as described in his October 2020 Board hearing, (3) carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA, or (4) an event not reasonably foreseeable. Given the February 2021 VA examiner's expertise, review of the medical record, and the detailed rationales supporting their conclusions, the Board finds the February 2021 VA examination reports and medical opinion to be the most probative evidence of record. In an April 2021 statement in support of his claim, the Veteran stated that he was dissatisfied with his VA examination, as the examiner told the Veteran he did not know why the Veteran was sent to him and only looked at his right leg briefly. The Board finds that the February 2021 VA examination reports and medical opinion indicate that the VA examiner did review the Veteran's medical history and claims file, was familiar with the Veteran's claim, and provided opinions with adequate supporting rationales for the questions posed by the Board. Regarding the issue of carelessness, negligence, lack of proper skill, error in judgment, or similar fault in the movement of the Veteran by hydraulic patient lift, the Board notes at the outset that there is no medical evidence in the record that the incident occurred or that any injury occurred as a result. To the extent that the Veteran claims, and testified to in the October 2020 Board hearing, that the use of a hydraulic patient lift was careless, negligent, insufficiently skillful, erroneous, or otherwise the fault of VA, the Board notes that while he is competent to opine on his personal experiences or symptoms capable of lay observation, such as pain or bleeding, there is no documentation of any such injury or of the Veteran complaining of such an injury in his treatment records. Additionally, the Veteran does not have the medical training and expertise to competently opine on whether any right leg injury caused nerve damage. To competently opine on a matter of such medical complexity requires a certain level of medical education, training, experience and/or expertise. The Veteran has not demonstrated that he has any such qualifications. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Thus, his statements indicating that his right leg hematoma and treatment caused nerve damage are of little evidentiary value. On balance, the preponderance of the competent evidence of record indicates that the Veteran's right leg hematoma was likely caused by either his prescribed medication, which had anticoagulant effects, a fall sustained while at a VA facility that was not due to the negligence or fault of VA staff, or a combination of the two factors. As noted above, the Veteran has not specifically asserted the use of such medications, as opposed to the described injury, in the context of additional disability per the section 1151 claim. Additionally, the preponderance of the evidence indicates that the Veteran's right lower extremity nerve issues preexisted the right leg hematoma and are most likely due to his diabetic neuropathy and generalized peripheral neuropathy. While the Veteran has asserted that his right leg hematoma occurred due to negligent use of a hydraulic patient lift device, there is no documentation of any injury after that incident occurred. Additionally, no medical evidence or opinion indicates that fault on the part of VA occurred in the actual performance of the procedure or in the subsequent surgical operation on the right leg hematoma. The February 2021 VA examiner found that no additional disability developed on account of VA surgery or treatment. Thus, the Board finds that the preponderance of the evidence weighs against a finding that there was any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA as related to the provision of the actual surgical treatment at issue here. Based on these facts, the preponderance of the evidence is against the Veteran's noted claims of entitlement to compensation under 38 U.S.C. § 1151 residuals of desmoid tumor excision. As the preponderance of the evidence is against his claim, the benefit-of-the-doubt rule does not apply, and his claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.