Citation Nr: 22016252 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 12-32 624 DATE: March 21, 2022 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for residuals of right ankle surgery, claimed as Parkinson's disease, is denied. FINDING OF FACT The weight of the persuasive evidence of record weighs against finding that the Veteran has a qualifying additional disability of the right ankle, or Parkinson's disease, caused by VA medical care or treatment related to his March 2009 right ankle surgery. CONCLUSION OF LAW The criteria for compensation under 38 U.S.C. § 1151 for a qualifying additional disability of the right ankle, or Parkinson's disease, caused by VA medical care or treatment related to his March 2009 right ankle surgery are not met. 38 U.S.C. §§ 1151, 5107(b); 38 C.F.R. § 3.102, 3.361. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to September 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has an extensive history before the Board which is incorporated here by reference. In July 2021, the Board remanded the appeal. The Board finds that there has been substantial compliance with the Board's prior remand directives as to the matter adjudicated in this decision. Stegall v. West, 11 Vet. App. 268 (1998). A December 2021 communication from the Veteran indicated he wished to withdraw his claim for eligibility for compensation for Parkinson Disease. See VA 27-0820, Report of General Information (December 2021). A December 2021 letter sent to the Veteran and his representative requested the Veteran clarify whether he wished to completely withdraw his claim for service connection for residuals of right ankle surgery pursuant to 38 C.F.R. § 1151. See BVA Letter (December 2021). As no response was received, the Board will proceed with consideration of the appeal. Entitlement to compensation under 38 U.S.C. § 1151. The Veteran contends that he developed Parkinson's disease following his March 2009 VA right ankle surgery with three post operative staph infections at the surgical site and/or VA prescribed medications to include intravenous (IV) medications used to treat the staph infections. See Medical Treatment Records - Furnished by SSA (June 2009); Form 9 (November 2012). Under 38 U.S.C. § 1151, compensation is awarded for a qualifying additional disability or death in the same manner as if such additional disability or death were service connected. For purposes of this section, a disability or death is a qualifying additional disability if (1) the disability or death was not the result of the veteran's willful misconduct, (2) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under the law administered by the Secretary, and (3) the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151; 38 C.F.R. § 3.361; Viegas v. Shinseki, 705 F.3d 1374, 1377-78 (Fed. Cir. 2013). The mere fact that the Veteran received care, treatment, or examination and has an additional disability does not establish actual causation. Evidence must show that VA hospital care, medical or surgical treatment, or examination resulted in additional disability. 38 C.F.R. § 3.361(c)(1). Medical treatment cannot cause the continuance or natural progress of a disease or injury for which the treatment 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). 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 the hospital care or medical or surgical treatment caused the veteran's additional disability; and either (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1) The question for the Board is whether it is at least as likely as not that the Veteran sustained additional disability caused by VA medical care and/or surgical treatment. The Board concludes that, while the Veteran has Parkinson's like symptoms (Parkinsonism), the weight of the persuasive evidence is against a finding that he has qualifying additional disability of the right ankle, or Parkinson's disease, caused by VA medical care or treatment related to his March 2009 right ankle surgery. 38 U.S.C. § 1151; 38 C.F.R. § 3.361. The evidence of record does not show that infection at the surgical site was unforeseen or a result of VA's failure to exercise the degree of care expected of a reasonable health care provider; or that any Parkinsonian type symptoms are an additional disability associated with the March 2009 right ankle surgery or medications related to post-surgical infection. The Veteran initially sought treatment at VA in February 2009 following his retirement. No prior medical records are available. He had a mass/cyst on the right ankle on intake into the VA medical system and underwent surgery in March 2009 to remove the mass. See CAPRI (October 2016). Informed consent for the procedure listed infection of the incision cite requiring further treatment or surgery as a known risk of the procedure. See Medical Treatment Record - Government Facility (October 2016). In April 2009, the Veteran developed an infection in the unhealed wound which required hospitalization due to septicemia; following treatment, his spouse noted tremors in the hands, which progressed to the feet. See Medical Treatment Record - Government Facility (July 2009). The claims file includes June 2009 private neurological records from Dr. L.L., which show that the Veteran reported his mother had Parkinson's disease. See Medical Treatment Record Non-Government Facility (June 2009). He further indicated that he had intermittent tremors; he denied symptoms of dysphagia, facial weakness, and unilateral weakness and numbness. Diagnostic impressions were compatible with Parkinson's disease. The Veteran and his spouse were informed that Parkinson's disease as a result of septicemia was "possible but rather unusual." The requested brain MRI was normal. Following further review of the Veteran's medical history, the neurologist saw no medications on the Veteran's list that could cause Parkinsonian syndrome which "may have been triggered by the infection [the Veteran] had." Id. A second opinion was requested from VA. At a July 2009 VA neurology consult for a second opinion, the Veteran reported that his tremor was present in the right hand with rest and, sometimes, in the left hand when anxious. See Medical Treatment Record Government Facility (July 2009). The neurologist found the Veteran's symptoms did not present as Parkinson's disease but was possibly Parkinsonism due to psychiatric medication prescribed by a non-VA provider, metabolic disorder, or conversion disorder. Id. The Veteran began treatment for Parkinsonian syndrome in July 2009. See Medical Treatment Record Non-Government Facility (August 2009). At an October 2009 VA examination for aid and attendance, the Veteran reported that he was a funeral director and embalmer until January 2009 when he sold the business because a "movement disorder" prevented him from keeping up with the work. See VA Examination (October 2009). A Parkinsonian like movement disorder was diagnosed. A November 2009 VA brain and spinal cord examination found no evidence that the medications used for the Veteran's wound care would lead to his reported progressive disability. See VA Examination (November 2009). The examiner opined the symptoms were probably a psychiatric disorder. VA treatment records from 2016 to 2019 reflect no findings or complaints for gait issues, ankle disability, or tremor. A July 2018 cardiology note indicated the Veteran was quite active and able to work around his farm without any cardiac symptoms and walk on the treadmill several times a week with the only limiting factor being his right knee injury. See CAPRI (April 2019). A September 2021 VA medical opinion reflects that it is less likely than not the claimed condition was caused by or became worse as a result of the VA treatment, additional disability from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel or additional disability 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 allowed the disease or disability to continue to progress. See C&P Exam (September 2021). The opinion reflects that: VA diagnosis and treatment was appropriate and timely, accepted appropriate protocols were followed, and the standard of care was met in this case. The opinion explained that emergence of Parkinsonism (PIM) or Parkinson's disease (PD) was completely unpredictable; not the result of any breach in care; not related to the delivery of or the withholding of therapy. In support of the opinion, the neurologist explained that drug-induced PIM is common in psychiatry/neurology as a side effect of the drugs ("our drugs do this"), and the Veteran took psychiatric drugs (Celexa) long before his surgery. There was no breach in the standard of care as the Veteran was informed of the risk of post-op infection multiple times before the surgery, and the resulting infection was treated with standard antibiotics. The opinion explained that, given the Veteran's medical history and family history of PD: ... the combinations of factors in this Veteran from pre-existing psychiatric drug use, to unalterable genetics, to needed multiple therapies; to prolonged inflammation; to prolonged state of emotional stress which will add to inflammatory changes; that a perfect storm of events caused his PD/PIM to emerge clinically during the ATP (acute treatment period). The opinion noted, however, that there is no link from brain to ankle in this sense, stating that "Surgery on the ankle does not cause PIM/PD, and a limitation of movement/disability of the ankle FROM ANY CAUSE does not cause PIM/PD." The Board finds that competent, credible evidence of a qualifying additional disability of the right ankle, or Parkinson's disease, caused by VA medical care or treatment related to his March 2009 right ankle surgery, has not been presented. Indeed, the most recent September 2021 VA medical opinion is not favorable and does not support a finding that the Veteran has additional disability related to his March 2009 VA right ankle surgery or care. The Board accepts that the Veteran believes his Parkinsonism was caused by a failure on the part of VA to properly treat the infection developed after his right ankle surgery. However, the Veteran he is not competent to formulate a medical opinion in this matter. The diagnosis and etiology or his Parkinson-type symptoms after the surgery is a complex medical matter that requires medical knowledge of the musculoskeletal and neurological systems to include its disease processes and causes. These matters are medically complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran has not identified any specific instance of fault involving carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault for the Board to consider. Consequently, the Board gives more probative weight to the September 2021 VA medical opinion because it was prepared by a skilled, neutral medical professional after review of the relevant medical records and contains a complete rationale for the conclusions reached. Nieves-Rodriguez v. Peake, 22Vet. App.295, 301 (2008) There is no favorable medical evidence to weigh in this matter. Accordingly, the claim is denied. As the evidence of record persuasively weighs against the claims, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Edwards 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.