Citation Nr: 23027331 Decision Date: 05/08/23 Archive Date: 05/08/23 DOCKET NO. 16-42 285 DATE: May 8, 2023 ORDER VA compensation under 38 U.S.C. § 1151 for a decubitus ulcer (bedsore) as a result of treatment rendered at a Department of Veterans Affairs (VA) Medical Center from February 2014 to July 2016 is denied. FINDING OF FACT The Veteran's right ischial wound and decubitus ulcer were not caused by VA's carelessness, negligence, lack of proper skill, error in judgment, or some other instance of fault on the part of VA in rendering medical care, or because of an event not reasonably foreseeable. CONCLUSION OF LAW The criteria to establish entitlement to compensation under 38 U.S.C. § 1151 for a decubitus ulcer have not been met. 38 U.S.C. §§ 1151, 5107; 38 C.F.R. §§ 17.32, 3.102, 3.361, 4.150. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1978 to July 1981. In February 2019, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer with the Board of Veterans' Appeals (Board). During the hearing, the VLJ engaged in a discussion with the Veteran towards substantiating the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). The transcript is in the record. In August 2022, the Board remanded the claim to a VA Regional Office (RO) to obtain a medical opinion, which was completed later that month. The RO complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). VA compensation under 38 U.S.C. § 1151 for a decubitus ulcer due to VA medical treatment from February 2014 to July 2016 is denied. The Veteran contends that VA medical providers negligently failed to prevent and treat a right ischial tear that developed into a decubitus ulcer during his hospitalization at a VA Medical Center (VAMC) from February 2014 to July 2016. The claim is denied because the persuasive medical evidence indicates that VA providers followed the appropriate medical standard of care in treating the right ischial wound/ulcer. VA may award disability compensation under 38 U.S.C. § 1151 for additional disability caused by VA's carelessness, negligence, lack of proper skill, error in judgment, or similar fault in furnishing hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused additional disability, it must be shown that (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. Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease of injury for which the care or 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). Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is 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 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). In deciding claims, the Board evaluates the entire record on appeal. 38 U.S.C. § 7104 (a). When the evidence fully supports the claim, it will be granted. When the evidence for and against the claim is approximately balanced, the Board resolves reasonable doubt in the Veteran's favor and grants the claim. When the evidence is not approximately balanced, there is no reasonable doubt to resolve, and the claim will be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 999 F.3rd 1391 (2021). The Veteran was hospitalized at the Houston VAMC from February 2014 to July 2016. In early March 2014, the Veteran was transferred to the surgical intensive care unit (SICU) for a bowel infection, abdominal abcess, and perianal fistula. A March 2, 2014 nursing record noted the Veteran was at moderate risk of decubitus ulcers but he did not have pressure ulcers or other skin problems at that time. The attending clinician noted that pressure ulcer protocols were implemented and advised the Veteran how to avoid ulcers. A March 17, 2014 skin assessment noted a "very small" fistula but no pressure ulcers, wounds, or other skin problems. The attending clinician noted pressure ulcer protocol was not needed and the Veteran "[was] not at risk." However, a March 18, 2014 skin assessment noted pressure ulcer protocols were in place. The Veteran underwent gastrointestinal surgeries on March 20, 21, and 23, 2014. A March 21 wound care record noted the Veteran did not have a pressure ulcer but ulcer prevention protocols were implemented. A March 22 nursing assessment noted "potential for pressure ulcer" because of a "no turning order" that was in place because the Veteran had an open surgical wound on his abdomen. The attending clinician noted she was unable to assess the Veteran's posterior area because of the no turning order. A March 23 nursing assessment noted "moderate risk" of decubitus ulcers and continued ulcer prevention measures. The clinician noted he was unable to inspect the Veteran's posterior area due to the no turning order. On March 26, 2014, the Veteran developed a pulmonary embolus (blood clot), abdominal bleeding, respiratory failure, and became unresponsive. The Veteran remained unresponsive, "semi-comatose," and immobile from March 26, 2014 to April 2, 2014. Hospital staff monitored him hourly, bathed him, and turned him every two hours. An April 1, 2014 skin assessment noted "the pressure ulcer prevention protocol was not needed - patient is not at risk." The attending clinician noted a "moderate risk" of developing a pressure ulcer but noted normal skin color, temperature, moisture, and turgor. The Veteran underwent an abdominal abscess drainage procedure on April 1. After the procedure, medical staff bathed and periodically repositioned the Veteran. Staff noted there was no skin breakdown or tearing. An April 2, 2014 nursing record noted a high risk of developing a pressure ulcer and implemented pressure ulcer protocols. From April 2 to April 16, the Veteran was turned every two hours, his abdominal surgical wound was dressed and cleaned, and pressure ulcer protocols remained in place. On the morning of April 16, a physician noted the Veteran's surgical wound appeared to be healing well and had no areas of necrosis or poor healing on physical examination. Later that afternoon (on April 16), a clinician noted a "skin tear on right ischial... continue to monitor" and applied Mepitel. An April 17 skin integrity screen indicated a "risk for breakdown." The Veteran was instructed on how to safely turn his body to prevent altered skin integrity. The Veteran was bathed and nursing staff applied Mepitel to the ischial tear. An April 19 record noted a "rectangular skin tear approximately .5cm x 1.5cm on the right ischial area." From April 2014 to July 2016, pressure ulcer protocol remained in place. The Veteran was turned every 2-4 hours, his right ischial wound was dressed and cleaned, and he was placed in a low-pressure air mattress to reduce pressure. On May 27, a physician noted the right ischial wound "appeared to be worsening." A June 16 skin assessment noted a Stage IV pressure ulcer on the right ischium. The Veteran underwent a debridement and bone biopsy on June 26, 2014. A pathology report indicated "acute and chronic osteomyelitis" and E. coli. The Veteran was given a course of intravenous antibiotics. From June 2014 to July 2016, the Veteran underwent multiple debridements and wound VAC's. In December 2015, he had surgery to close the ischial wound with a skin flap. VA records from December 2015 to July 2016 noted the Veteran's wound was healing appropriately and ulcer protocols remained in place. The Veteran was discharged on July 7, 2016. Discharge records note that this ulcer had healed. A February 2017 VA skin conditions examination report noted a healed right ischial pressure ulcer. In February 2017, a VA physician opined that the Veteran received timely and appropriate medical care both before and after decubitus ulcer was detected on April 21, 2014. The physician opined that VA providers took every ulcer prevention measure, however, given the Veteran's diabetes and paraplegia, it was highly likely that the ulcer would have manifested even under the best medical care The physician noted a study suggesting that patients admitted to a spinal cord unit most often develop decubitus ulcers within the first few days of admission. The physician noted that the Veteran did not develop an ulcer until the second month of his admission. At his February 2019 Board hearing, the Veteran alleged that he became "brain dead" after a March 2014 surgery and was in a coma for 22 days. He alleged that he developed a bed sore during those 22 days (while he was "asleep") because VA medical staff was not properly trained and did not move him enough. The Veteran further alleged that the right ischial sore recurred in 2019 and never fully healed. In April 2020, a VA physician opined that, given the Veteran's extensive hospitalization and comorbidities, it was "inevitable" that skin breakdown would occur. However, the physician opined that VA medical providers followed proper wound care precautions and treatment. In February 2022, a VA physician opined that the Veteran's chronic osteomyelitis infection(s) predisposed him to easily developing pressure ulcers, which was outside medical providers' control. The physician reiterated that VA providers followed appropriate precautions in treating the Veteran's ulcer. In August 2022, a VA physician opined that the fact that pressure ulcer protocols were discontinued on April 1, 2014 (see nursing note, above) does not mean that the Veteran's ulcer developed due to VA negligence. The VA examiner noted that the Veteran was able to move himself in bed, at baseline, although she was unable to determine if that was true on April 1, 2014 (it was not). However, the examiner noted the records available to her showed that VA staff provided proper wound care, repositioning, and other appropriate treatment. She noted the right ischial ulcer was ultimately surgically closed with a flap and fully healed when the Veteran was discharged in July 2016. The physician further opined that any ulcers that developed after July 2016 would be a "separate condition" and unrelated to the care the Veteran received from February 2014 to July 2016. In January 2023, a VA physician noted a medical journal article suggesting that bedsores are mostly avoidable and often arise due to quality-of-care issues. See (Kruger et al., Comprehensive management of pressure ulcers in spinal cord injury: Current concepts and future trends, The Journal of Spinal Cord Medicine (Nov. 2013) (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3831318/)). However, the VA physician also noted a consensus paper by the National Pressure Ulcer Advisory Panel (NPUAP) which found that pressure ulcers are sometimes unavoidable for patients with hemodynamic instability that is worsened with physical movement; inability to maintain nutrition and hydration status; an advanced directive prohibiting artificial nutrition/hydration; pressure redistribution surfaces cannot replace turning and repositioning; and where enough pressure was removed from the external body that the skin cannot survive. The January 2023 VA examiner noted the Veteran had multiple comorbidities which increased his risk for pressure ulcers, including paraplegia from a spinal cord injury, diabetes mellitus, hypertension, hyperlipidemia, anemia, neurogenic bladder and bowel, neuropathic pain, recurrent deep vein thrombosis/pulmonary emboli, history of pressure ulcers, multiple surgeries, changes in mentation, and spasticity. The examiner opined that the above-listed conditions cause sensory loss, reduced skin perfusion, immobility (bedrest) and nutrition issues, all of which are important factors in developing pressure ulcers and contributed to the Veteran's poor wound healing. The persuasive medical evidence indicates the Veteran's right ischial tear and decubitus ulcer were not caused by VA negligence. Hospital records show that pressure ulcer protocols were routinely implemented. These protocols included daily monitoring, wound care and cleaning, and turning the Veteran every two to four hours. Medical providers routinely advised the Veteran on proper wound care, positioning, and safe movement to minimize the risk of ulcers. Pressure ulcer protocols were discontinued twice (March 18 and April 1), immediately before two medical procedures (a fistulogram and abscess drain, respectively). However, the protocols were immediately re-implemented the same day or the next day and remained in effect from February 2014 to July 2016. The hospital records are highly probative evidence because they were generated with the specific view of recording the events they describe. In this respect, they are akin to official records, which generally enjoy a high degree of probative value in the law. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision). Additionally, the February 2017, April 2020, February and August 2022 VA examiners opined that VA staff followed the appropriate medical standard of care in treating the Veteran's ischial tear/ulcer. The VA examiners opined that given the Veteran's multiple comorbid conditions and length of his hospital stay, developing an ulcer was nearly "inevitable," even with the appropriate level of care (which the Veteran received). Notably, the January 2023 VA examiner opined that the Veteran's comorbid conditions make him susceptible to pressure ulcers, skin breakdown, and poor wound healing. While the Veteran is competent to report what he perceived through his senses, he does not have the medical training to opine on the appropriate standard of care in treating pressure ulcers. He is also not competent to speculate about events that occurred while he was unconscious and/or unresponsive. Jandreau v. Nicholson, 492 F.3d 1372 (2007). The Veteran's allegation that he developed the ulcer during a 22-day period of unconsciousness is contradicted by hospital records. These records show that the Veteran was unresponsive for 9 days (March 26 to April 4, 2014) but the right ischial tear occurred on April 17, when the Veteran was conscious and able to move. The ulcer was not noted until June 2014. As outlined above, VA medical providers closely monitored the Veteran (including during his period of unconsciousness), turned him, and followed other appropriate wound care and ulcer prevention measures. The Veteran's assertions to the contrary are not persuasive. Lastly, decubitus ulcers were a reasonably foreseeable risk associated with the Veteran's medical conditions, surgeries, and length of hospital stay. The Veteran acknowledged the risk of infection in multiple consent forms. 38 C.F.R. § 3.361(d)(2) (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 38 C.F.R. § 17.32.). For these reasons, entitlement under 38 U.S.C. §1151 is not warranted and the claim is denied. The evidence for and against the claim is not approximately balanced and there is no doubt to resolve. Lynch. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hiaasen The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.