BVA9508045 DOCKET NO. 90-25 522 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to benefits pursuant to 38 U.S.C.A. § 1151 (formerly § 351) for additional disability resulting from partial amputation of a fifth left ray. REPRESENTATION Appellant represented by: Keith D. Snyder, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD R. P. Harris, Counsel INTRODUCTION The appellant had active service from October 1945 to April 1947. This matter came before the Board of Veterans Appeals (Board) on appeal from a May 1989 rating decision of the St. Petersburg, Florida, Regional Office. In a July 17, 1991, decision, the Board denied entitlement to benefits pursuant to 38 U.S.C.A. § 351 for additional disability resulting from partial amputation of a fifth left ray performed at a Department of Veterans Affairs (VA) medical facility in January 1987. Jurisdiction over this case has been transferred on several occasions between the St. Petersburg, Florida, RO and the St. Louis, Missouri, RO. Subsequently, the appellant appealed the Board's July 17, 1991, decision to the United States Court of Veterans Appeals (Court). In August 1992, the Secretary of the VA, the appellee, and appellant filed with that Court a joint motion to remand the case for readjudication of the claim in light of that Court's decision in Gardner v. Derwinski, 1 Vet.App. 584 (1991). By order rendered August 10, 1992, that Court granted the motion, vacated the Board's July 17, 1991, decision, and remanded the case for readjudication of the claim in light of Gardner. The Board stayed readjudication of the appellant's claim, pending appeal of Gardner. The decision was affirmed by the United States Court of Appeals for the Federal Circuit (Court of Appeals) in Gardner v. Brown, 5 F.3rd 1456 (Fed. Cir. 1993), and subsequently appealed to the United States Supreme Court (Supreme Court). On December 12, 1994, the Supreme Court issued its decision in Gardner, affirming the decisions of the Court and the Court of Appeals. Brown v. Gardner,__U.S.__, 115 S. Ct. 552 (1994). Thereafter, the Secretary of the VA sought an opinion from the Attorney General of the United States (Attorney General) as to the full extent to which benefits were authorized under the Supreme Court's decision. On January 20, 1995, the Secretary received an opinion from the Department of Justice's Office of Legal Counsel. On January 26, 1995, the Chairman of the Board announced the lifting of the Board's stay on the adjudication of cases affected by Gardner involving claims for benefits under 38 U.S.C.A. § 1151 (formerly § 351). It appears that statements by the appellant in his substantive appeal and by his attorney in the motion for remand have raised the issue of entitlement to an increased rating for postoperative residuals of varicose veins of the right leg. Since this issue has not been developed for appellate review, it is referred to the RO for appropriate action. REMAND The Board's July 17, 1991, decision (vacated by the Court) denied the appellant's § 1151 claim under 38 C.F.R. § 3.358(c)(3), a section of the regulation implementing 38 U.S.C.A. § 1151. In that decision, the Board determined, in part, that the partial amputation of the appellant's fifth left ray, performed at a VA medical facility in January 1987, was not due to an unforeseen accident or negligent medical treatment by the VA. However, thereafter in Gardner, that Court invalidated 38 C.F.R. § 3.358(c)(3), on the grounds that that section of the regulation, which included an element of fault, did not properly implement the statute. The provisions of 38 C.F.R. § 3.358, excluding section (c)(3) as then constituted, remain valid. See Brown v. Gardner, 115 S. Ct. 552, 556 n.3 (1994). In pertinent part, 38 U.S.C.A. § 1151 provides 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. 38 C.F.R. § 3.358, the regulation implementing that statute, provides, in pertinent part: Section (b) Additional disability. In determining that additional disability exists, the following considerations will govern: * * * * (2) Compensation will not be payable under 38 U.S.C. 1151 for the continuance or natural progress of disease or injuries for which the training, or hospitalization, etc., was authorized. (c) Cause. In determining whether such additional disability resulted from a disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination, the following considerations will govern: (1) It will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith. A January 20, 1995, memorandum opinion from the Office of the Attorney General advised that as to required "causal connection", the Supreme Court had addressed three potential exclusions from coverage under 38 U.S.C.A. § 1151. The opinion explained, in pertinent part, that: Exclusion of the first two classes of cases would flow from the absence of the causal connection itself: if the intended connection is limited to "proximate causation"...then "remote consequences" of treatment may be excluded,...and "incidents of a disease's or injury's natural progression" properly are excluded by VA regulations because VA action "is not the cause of the disability in these situations....the third exclusion..., unlike the first two, does not turn on the absence of a causal link between VA treatment and the injury in question. Rather, it seems to be premised on some theory of consent...What the Court...appears to have in mind...is not a naturally termed..."risk" at all, but rather the certainty or near-certainty that an intended consequence of consensual conduct will materialize. VA recently published an interim final rule, 60 Fed. Reg. 14,223 (1995) (to be codified at 38 C.F.R. § 3.358(c)) (proposed Mar. 15, 1995), which provides, in pertinent part: (3) Compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. The appellant contends, in essence, that § 1151 benefits are warranted for additional disability resulting from partial amputation of the fifth left ray, on the grounds that although he consented to that surgical procedure, his consent was based upon an erroneous diagnosis by VA physicians of osteomyelitis of that ray; that the diagnosis was rendered without benefit of any preoperative laboratory studies to confirm the presence of osteomyelitis; and that since a postoperative pathology report showed the amputated ray was not osteomyelitic, this proves the amputation was medically unnecessary. It appears to the Board that medical development by the RO is required regarding, in part, medical opinion as to whether VA's medical treatment in question had been properly administered. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991), which held that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment. With regard to the adequacy of the evidentiary record, the evidentiary record currently does not appear to include original and complete VA clinical records regarding the partial amputation of the fifth left ray in January 1987, such as the operative report, any preoperative laboratory studies (e.g., microbacteriologic cultures), and physicians' and nurses' notes. It does not appear that the RO has sought these records. An attempt to obtain such records may prove beneficial. See 38 U.S.C.A. § 5107(a) (West 1991), referring to VA's duty to assist in development of facts pertinent to a veteran's claim. From a procedural due process standpoint, the RO has not adjudicated the claim under VA's interim final rule, 60 Fed. Reg. 14,223 (1995). See Karnas v. Derwinski, 1 Vet.App. 308, 312-313 (1991); and Spencer v. Brown, 4 Vet.App. 283, 288-89 (1993). Furthermore, as there is a change in the legal criteria for adjudicating these claims, the appellant must be provided full notice and have an opportunity to be heard at the RO so that prejudice does not result. Bernard v. Brown, 4 Vet.App. 384 (1993). Accordingly, the case is REMANDED for the following: 1. The RO should attempt to obtain any additional, medical records, preferably originals but if not feasible, legible copies thereof, pertaining to the partial amputation of appellant's fifth left ray in January 1987, and all subsequent treatment for that condition, from VA Medical Centers in Gainseville, Florida, and Hines, Illinois, and associate these with the claims folder. These requested records include, but are not limited to: (a) all hospital or outpatient treatment records pertaining to his left foot immediately prior and subsequent to the January 1987 hospitalization, including any additional December 1986 podiatric outpatient records, (b) all records pertaining to appellant's January 1987 hospitalization, including operative reports, laboratory studies (e.g., any preoperative microbacteriologic cultures), and physicians' and nurses' notes, (c) any consent forms authorizing that surgical amputation, and (d) any medical incident reports that may have been prepared regarding appellant's medical treatment during the January 1987 hospitalization. 2. The RO should have a physician or physicians, such as an infectious bone disease specialist, orthopedist or surgeon, who have not previously examined the appellant, review the entire claims folder and express an opinion, including the degree of probability, regarding the following questions: (a) was the medical care provided by the VA during the January 1987 hospitalization properly administered with regard to the detection, diagnosing, and treatment of appellant's left foot condition, (b) was there active osteomyelitic involvement of the fifth left ray at the time of amputation, (c) if the fifth left ray was actively osteomyelitic at the time of amputation, was amputation (versus conservative treatment) medically indicated, and (d) if the fifth left ray was not actively osteomyelitic at the time of amputation, was amputation (versus conservative treatment) nevertheless medically necessary for inactive osteomyelitis, and (e) if the fifth left ray was not osteomyelitic at the time of amputation, was amputation (versus conservative treatment) nevertheless medically necessary by reason of disease other than osteomyelitis that may have been manifested (e.g., diabetic ulcer, if any; or marked arteriosclerosis of the arterioles of that ray); and if so, was the amputation properly performed? 3. Additionally, the physicians, after review of the entire claims folder, should render an opinion, including the degree of probability, regarding whether, in the event the medical care provided by the VA was improperly administered, did the amputation result from VA's improper medical treatment or lack of medical treatment versus the continuance or natural progress of preexisting osteomyelitis/diabetic ulcer/arteriosclerosis of arterioles of the fifth left ray. 4. The physicians should comment on the significance, if any, of a January 1987 VA tissue examination and pathological report's diagnoses, specifically pre- and postoperative diagnoses and operative findings of osteomyelitis of the fifth left metatarsal (referred to in the tissue examination part of the report); and the pathological report's diagnoses of scarring, mild chronic inflammation, and hemosiderin deposition of the bone and soft tissue of the excised fifth metatarsal specimen, marked arteriosclerosis of local arterioles, and "no osteomyelitis seen." 5. If these matters cannot be medically determined without resort to mere conjecture, this should be commented upon by these physicians. The physicians should adequately summarize the relevant history and clinical findings, and provide detailed reasons for their medical conclusions. 6. The RO should adjudicate the appellant's claim under the applicable regulations currently in effect. In order to avoid undue delay in this case, the RO should make certain that the instructions contained in this REMAND decision, detailing the requested development, have, in fact, been substantially complied with. When this development has been completed, and if the benefit sought is not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).