Citation Nr: 0004699 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 98-19 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of amputation of the left leg due to osteomyelitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from April 1976 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas. FINDINGS OF FACT No medical causal relationship or nexus is demonstrated between the veteran's residuals of amputation of the left leg due to osteomyelitis and any period of VA hospitalization or any VA treatment. CONCLUSION OF LAW Compensation under 38 U.S.C.A. § 1151 for residuals of amputation of the left leg due to osteomyelitis is not warranted. 38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (1999); VAOGCPREC 40-97 (63 Fed. Reg. 13263 (1998)). REASONS AND BASES FOR FINDINGS AND CONCLUSION The claim is plausible and thus "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), which mandates a duty to assist in developing all pertinent evidence. It is the determination of the Board that the evidentiary record is sufficient both in scope and in depth for a fair, impartial, and fully informed appellate decision. Background After receiving the veteran's original claim for compensation in February 1992, a May 1992 rating action denied service connection for, in part, a left knee disorder. In June 1997 the veteran filed a claim for a temporary total rating under 38 C.F.R. § 4.30 based on left leg amputation during VA hospitalization in June 1997. Subsequently, there is correspondence on file from the veteran and from the RO concerning the prior denial of service connection for a left knee disorder and what appeared to be an attempt to reopen that claim without the submission of new and material evidence. This matter was clarified when the veteran's claim for compensation under 38 U.S.C.A. § 1151 for residuals of amputation of the left leg due to osteomyelitis was received on February 18, 1998. In written correspondence dated in April 1998, O. D. Kelley, a licensed practical nurse with 12 years of experience, stated that she had known the veteran since 1993 and he had always complained of constant drainage from his left leg wound, which always had a foul odor. She noted that she had inquired of the veteran if he had been sent home from the hospital with an open and draining wound without any home care nurse to help him care for the wound. In the nurse's opinion the veteran should not have been sent home without some professional licensed or registered nurse providing home care for such a type of wound. Myrtle Harris, a registered nurse, noted in a statement received in April 1998 that she had seen the veteran's wound on his return home and it was draining purulent material for 5 years, until his amputation in 1997. She stated that he was sent dressings to his house to change his own dressings over the years. She further indicated that she had seen his wound on many occasions and smelled it. The odor was terrible and in her opinion he should not have been sent home with such a draining wound. On VA examination in July 1998, the veteran's claims file was present and reviewed by a VA physician, as was part of the veteran's medical file. The veteran reported that in May 1992 he had been shot in the upper part of the left tibia at close range with a 357-magnum handgun with a hollow point bullet. The impact created a tremendous bony defect or loss within a very short distance of the tibial component of the knee joint, as close as 1/2 inch. There was debridement of most of the medial portion of the tibia and tibial plateau. The fracture extended distally into the proximal third of the tibia, producing a complete fracture at that level. The veteran was placed in an external fixator with a 4- compartment fasciotomy being done and the primary fixator being adjusted on one occasion. He was discharged on June 5, 1992, but returned on June 16, 1992 with a deep wound infection and was started on antibiotics. Infectious Disease consultations were obtained and veteran had 5 years of multiple admissions for incisions and drainage as well as implantation of a Hickman catheter for administration of intravenous antibiotics and implantation of Methacrylate antibiotic beads within the substance of the wound. Amputation was eventually done on June 4, 1997 through the left knee joint. He was fitted with a prosthesis in January 1998. On examination, the examiner noted that the veteran felt that he should not have been discharged in June 1992 because he felt that he had the osteomyelitic infection at hospital discharge. He felt that he should have been sent home with a Home Health aide to help in the numerous daily change of wound dressings but stated that during his hospitalization he had at times changed his own dressings because the nurses were busy with other patients. Also, he had demonstrated for "doctors in training" how he properly changed his wound dressings. The examining physician was unable to find within the record the original admission hospital records but summaries done at subsequent admissions supplied a great many of the critical details. The VA examiner further stated that: "This gunshot wound at close range with this size projectile created a massive defect that even under the best of circumstances would have had to be dealt with later. A close range projectile will have bits of clothing, fired gun powder particles, and create massive destruction and dead tissue from the intense heat and impact. This creases a known contaminated wound and the debridement or cleansing of the wound in spongy bone such as in the proximal tibia makes mechanical cleaning difficult. It was important that they used the external fixator to keep other foreign material out of the wound that might have been surgically placed. The patient received antibiotic coverage. The patient had a 4-compartment fasciotomy which indicated excellent medical care and decision. Certainly between the time of the injury and the time of the discharge, the wound would be expected to open, draining, and contaminated to produce a positive culture. In this concept, the patient is correct. The wound was infected at the time of discharge, but he was not in a state of toxicity or he would not have been discharged. A long period of five years then followed before the amputation and during this period of time, from the record, all methods to attempt to save this extremity were exerted by the medical staff. I am wondering if part of the delay was not on the part of the patient because of the consequences of the decision to amputate which of course would have had to come from him. On this basis, I would not classify this treatment as inadequate." On the occasion of the January 1999 RO hearing, the veteran testified that following a gunshot wound in 1992 he was hospitalized on numerous occasions, often to have medication administered intravenously for treatment of the wound. He stated that most of the time he was sent home without any home health care but was instructed to dress his wound (page 1 of the transcript of that hearing). The veteran stated that no medical professionals were ever sent to his home to take care of him in the way of follow-up care. He testified that his wound did not heal and began to smell bad and fluid drained from the wound and, eventually, the VA had to amputate his left leg (page 2). The veteran further testified that when he had been discharged from a VA hospitalization in 1993 his wound was not completely healed, although it was not draining. He noted that in August 1994 he sought VA treatment at an emergency room because the surrounding tissue became soft and the treating physician, who was working from an old chart, stated that the veteran did not need to come back in for intravenous antibiotics because the physician did not think that they would work but the veteran further testified that such treatment had worked in the past. Thus, he had not been admitted for intravenous antibiotics at that time and the osteomyelitis became worse such that in 1996 he was hospitalized for about 14 days and after discharge and returning home he could no longer stand the condition. The veteran felt that if he had been given antibiotics intravenously in 1994 the osteomyelitic infection would have cleared and his left leg would not have been amputated (page 3). This opinion was based on what he was told by two nurses who had treated the veteran (page 4). After partially quoting some unspecified literature apparently relating to treatment of infections, the veteran stated that this quotation "means I, I got my infection at the time I was in surgery, and they should have been able to clear it up" (page 5). Law and Regulations In pertinent part, 38 U.S.C.A. § 1151 previously provided that: Where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment [] and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability..., disability or death compensation... shall be awarded in the same manner as if such disability, aggravation, or death were service-connected. The Board notes that the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter the Court) invalidated 38 C.F.R. § 3.358(c)(3), on the grounds that it did not properly implement 38 U.S.C.A. § 1151 (formerly § 351), in that it contained an additional element of fault. Gardner v. Derwinski, 1 Vet. App. 584 (1991). The Gardner decision was subsequently affirmed by the United States Court of Appeals for the Federal Circuit in Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993). That decision was also appealed, and in December 1994, the United States Supreme Court affirmed the lower courts' decisions in Brown v. Gardner, 115 S.Ct. 552 (1994). On March 16, 1995, amended VA regulations were published to conform with the Supreme Court's decision and, as revised, 38 C.F.R. § 3.358 did not have a fault requirement, pursuant to the holding in Gardner. 38 C.F.R. § 3.358(b)(2) states that compensation will not be payable under 38 U.S.C.A. § 1151 for the continuance or natural progress of disease for which the medical treatment was authorized. In addition, section (c)(3) states that compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the consent of the veteran. "Necessary consequences" is defined by regulation as those which are certain to result from, or were intended to result from, the medical or surgical treatment administered. However, 38 U.S.C.A. § 1151, was recently amended by Congress to include a fault requirement. Pub.L. 104-21, Title IV, § 422(a); Sept. 26, 1996, 110 Stat. 2926. "Congress has amended section 1151 to reincorporate the fault requirement [and that statutory amendment is] applicable to all claims filed on or after October 7, 1997." Boggs v. West, 11 Vet. App. 334, 343 (1998). (But see VAOGCPREC 40-97 holding that the amended statute is applicable to all claims filed on or after October 1, 1997). As amended, 38 U.S.C.A. § 1151 (West 1991) now provides that compensation under chapters 11 and 13 of 38 U.S.C. "shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability or death were service-connected. For the purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and - (1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary [of the VA], either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and 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; or (2) the disability or death was proximately caused by the provision of training and rehabilitation services by the Secretary (including by a service-provider used by the Secretary for such purpose under section 3115 of this title) as part of an approved rehabilitation program under chapter 31 of this title." 38 U.S.C.A. § 1151 (West 1991). 38 C.F.R. § 3.358 remains in effect but now applies only to claims filed before October 1, 1997. As to regulations relating to claims filed after October 1997, 38 C.F.R. § 3.361 (1998) was enacted in response to, and to enable, the revised 38 U.S.C.A. § 1151 (West 1991). However, this 'new' 38 C.F.R. § 3.361 was rescinded by a final rule which became effective January 8, 1999 because the August 24, 1998 publication in the Federal Register of 38 C.F.R. § 3.361 (and 38 C.F.R. §§ 3.362 and 3.363) had been made without notice and comment. See 64 Fed. Reg.1131-1132 (January 8, 1999). Analysis Here, the veteran had filed a claim for left knee disability prior to the 1992 gunshot wound and while there was subsequent correspondence prior to October 1997 with reference a claim for a temporary total disability rating and left knee disability, there was no indication, prior to October 1997, that this was a claim for benefits under 38 U.S.C.A. § 1151. Rather, it was not made clear that the veteran was claiming benefits under 38 U.S.C.A. § 1151 until February 1998. Accordingly, the new statute (which reincorporated a fault element) must govern. In Boeck v. Brown, 6 Vet. App. 14, 17 (1993) there was no holding reaching the "interesting question of whether 38 U.S.C.A. § 1151 applies in circumstances where a veteran enters a VA hospital with a nonservice-connected disease, and the claim is made that the negligent failure to diagnosis the disease is 'aggravation' of that disease'." In Boeck, the veteran's own lay opinion was inadequate. A medical opinion that he had the disease at the time of VA hospitalization and that good medical practice would have revealed the disease, were the sine qua non of a well grounded claim, but in Boeck there was no well grounded claim. Here, the statements of the two nurses are sufficient to well ground the claim. However, these opinions were rendered without a review of any medical records or examination of the veteran. The more comprehensive review by a VA physician, who has greater medical training and reviewed extensive records, is given greater probative value. In substance, that physician indicated that the initial osteomyelitic infection stemmed from the initial gunshot wound and not from the initial medical treatment given in 1992. Moreover, that physician clearly did not agree with the contention on appeal that the veteran should have been provided some type of home assistance in changing the wound dressings or being provided some additional antibiotic therapy. Rather, that physician concluded that the treatment rendered by VA was not inadequate. There is no probative competent medical evidence which outweighs this medical opinion. Accordingly, there is no basis for concluding that there was fault on the part of VA and, thus, there is no basis for allowing the claim. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case that claim is denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990). In this case, for the foregoing reasons and bases, the preponderance of the evidence is against the claim and, thus, there is no doubt to be resolved in favor of the veteran. ORDER The claim for compensation under 38 U.S.C.A. § 1151 for residuals of amputation of the left leg due to osteomyelitis is denied. A. BRYANT Member, Board of Veterans' Appeals