Citation Nr: 0002041 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 97-31 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to disability compensation benefits under the provisions of 38 U.S.C.A. § 1151 for a right below the knee amputation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States. ATTORNEY FOR THE BOARD Elizabeth Gallagher, Counsel INTRODUCTION The veteran had active service from May 1964 to May 1967. This matter came before the Board of Veteran's Appeals (Board) on appeal from a July 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. All relevant evidence necessary to an equitable disposition of this appeal has been obtained. 2. No competent medical evidence has been submitted to show that the veteran's right below the knee amputation by the VA in November 1990 resulted from prior treatment or surgery performed by the VA in November 1985, or that the amputation resulted in additional disability beyond the intended result of the surgical treatment. CONCLUSION OF LAW The veteran has not presented a well-grounded claim for entitlement to compensation benefits under 38 U.S.C.A. § 1151 for a right below the knee amputation. 38 U.S.C.A. §§ 1151, 5107 (West 1991; 38 C.F.R. §§ 3.358, 3.800 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION In January 1997, the veteran filed a claim for disability compensation benefits under 38 U.S.C.A. § 1151 for a right below the knee amputation. He has asserted that VA physicians improperly performed bypass surgery on his right leg in 1985, causing his leg to "rot", and leading ultimately to amputation in 1990. The threshold question to be answered in this case is whether the veteran has presented evidence of a well-grounded claim; that is, a claim which is plausible. If he has not presented a well-grounded claim, his appeal must fail. In such a case, there is no duty to assist him further in the development of such claim, because such additional development would be futile. 38 U.S.C.A. § 5107. As will be explained below, we find that the veteran's claim is not well-grounded. See Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In early November 1985, the veteran was examined at a VA medical facility complaining of a painful and swollen right 5th toe. The impression was that he had occlusive disease in the arteries of his right foot. A gangrenous right 5th toe was diagnosed. It was further noted that he was a cigarette smoker, and that smokers could develop Buerger's disease or other arterial occlusive events. The veteran was referred to a VA Medical Center for a surgical consult. It was noted that he had vascular insufficiency with a four to six month history of claudication in his right leg. He complained of a one-week history of pain in his right calf, and pain and discoloration of the fifth toe on his right foot. It was noted that he had smoked two packs of cigarettes per day for the previous 25 years. While hospitalized, a right femoral arteriogram was performed, which revealed complete occlusion of the right superficial femoral artery. The veteran underwent a thromboendarterectomy of the right common femoral artery, and a bypass from the right common femoral artery to the popliteal artery using a saphenous vein graft. He did well initially following the surgery. In December 1985, the veteran received treatment at a VA outpatient medical facility for an infection at the site of his surgical incision. The infection was brought under control and the veteran's cellulitis improved. When hospitalized at a VA Medical Center in July 1987 for an inferior wall myocardial infarction, it was noted that he had a history of peripheral vascular disease and had had a right femoral bypass in 1985, but no complaints or findings were made of any swelling or soreness in the veteran's legs. During a VA hospitalization in July and August 1988 for an episode of chest pain, it was noted that the veteran's extremities had intact pulses, and no edema. He was advised that it was imperative that he stop smoking because of his known coronary artery disease. The veteran was examined at a VA facility later in August 1988. At that time he was found to have positive bruit and femoral pulses which were equal bilaterally. A possible delay was noted when comparing the left and right pulses. In November 1990, the veteran presented with complaints of continuous pain in his foot and calf. A few days later he was hospitalized at the VA Medical Center in Houston, Texas due to his peripheral vascular disease with severe ischemic rest pain in the right foot. He underwent a right below the knee amputation. He originally did well post-operatively, but subsequently developed an infection at the surgical wound site. He was started on a course of antibiotics, and at the time of discharge in December 1990, there was only minimal cellulitis present in the wound. The wound infection proved difficult to bring under control, and he subsequently underwent several procedures to remove necrotic tissue at a hospital in Conroe, Texas. During a subsequent VA hospitalization in October and November 1991 for prosthesis training, it was noted that the revascularization of the veteran's right lower extremity had ultimately failed, and that his peripheral vascular disease had necessitated his right below the knee amputation. Pursuant to 38 U.S.C.A. § 1151, generally where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, not the result of the veteran's own willful misconduct, and such injury or aggravation results in additional disability to such veteran, disability compensation shall be awarded in the same manner as if such disability were service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.800. In Gardner v. Derwinski, 1 Vet.App. 584 (1991), aff'd sub nom., Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff'd, Brown v. Gardner, ___ U.S. ___, 115 S.Ct. 552 (1994), the United States Supreme Court affirmed a finding of the Court of Appeals for Veterans Claims that fault of the VA need not be shown as an element of recovery under 38 U.S.C.A. § 1151. Title 38 C.F.R. § 3.358, an implementing regulation for 38 U.S.C.A. § 1151, was revised to comply with the Gardner decision. The Board notes that effective October 1, 1997, 38 U.S.C.A. § 1151 was amended such that VA negligence would generally have to be shown for a claimant to obtain compensation under the statute. This amendment, however, does not apply to cases filed prior to the effective date. Pub. L. No. 104- 204, § 422(a)-(c) (1996). As this claim was filed prior to the effective date, the former statute must be applied. Cf. Karnas v. Derwinski, 1 Vet.App. 308 (1991) (in the present case, the former statute, which is discussed below, is more favorable to the veteran). See also Dudnick v. Brown, 10 Vet.App. 79 (1997). To obtain VA compensation, it is required that the veteran's disability must be the result of VA hospitalization, surgical or medical treatment - essentially a "medical nexus" requirement. Cf. Lathan v. Brown, 7 Vet.App. 359, 365 (1995); Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (Medical nexus required in the direct service connection context). The Board notes in passing that the medical nexus requirement for 38 U.S.C.A. § 1151 is actually a higher standard than what is required for direct service connection. For the latter, generally a claimant need only show that a disability had an onset in service; for the former, a mere coincidental onset is not enough - VA treatment must be shown to be a causal factor. 38 C.F.R. § 3.358(c)(1). Furthermore, compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the veteran. "Necessary consequences" are those which are certain to result from, or which were intended to result from the medical or surgical treatment administered. 38 C.F.R. § 3.358(c)(3). In this case, the veteran has contended that the surgical procedures performed by the VA in 1985 and his subsequent VA treatment resulted in the 1990 amputation. However, he has not presented any medical evidence to show that his right below the knee amputation was caused by the surgical procedures performed by the VA in 1985, or any subsequent medical treatment received from the VA, rather than as a result of the progression of his peripheral vascular disease aggravated by his cigarette smoking. To the contrary, the medical evidence contained in the claims file shows that the veteran's circulatory function in his right leg was improved for several years following the 1985 endarterectomy and femoral bypass procedures. While the veteran is certainly capable of providing evidence of symptomatology, as a lay person he is generally not capable of opining on matters requiring medical knowledge, such as what caused those symptoms. See Stadin v. Brown, 8 Vet.App. 280, 284 (1995); Robinette v. Brown, 8 Vet.App. 69, 74 (1995); Heuer v. Brown, 7 Vet.App. 379, 384 (1995); Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992); Harvey v. Brown, 6 Vet.App. 390, 393-94 (1994). In reviewing the medical evidence of record the Board notes that the veteran's post surgical course in 1990 was apparently complicated by subsequent infection at the wound site. The veteran has not contended that he suffered any additional disability due to the infection which developed at his surgical wound site. Furthermore, the record does not reflect that any additional chronic disability resulted. Therefore, the Board need not further consider whether the medical record constitutes an implicit intertwined claim for compensation under such a theory. It is not sufficient to merely show that complications, such as an infection and necrotizing tissue, followed necessary surgery. A veteran would also need to show that those complications actually resulted in additional disability to him, over and above the necessary consequences of his below the knee amputation. See generally, Gardner, 115 S.Ct. at 556, n. 3) ("It would be unreasonable . . . to believe that Congress intended to compensate veterans for the necessary consequences of treatment to which they consented (i.e. compensating a veteran who consents to the amputation of a gangrenous limb for the loss of the limb.)"). A well-grounded claim requires more than a mere assertion; the claimant must submit supporting evidence. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Since the veteran has submitted no medical opinion or other competent evidence in support of his claim for VA disability compensation for a right below the knee amputation under the provisions of 38 U.S.C.A. § 1151, the Board finds that he has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well-grounded. 38 U.S.C.A. § 1151; 38 C.F.R. §§ 3.358. Thus, his appeal is denied. The Board views its discussion in this decision as sufficient to inform the veteran of the elements necessary to complete his application for a claim for VA disability compensation benefits for a right below the knee amputation, under the provisions of 38 U.S.C.A. § 1151. See Robinette v. Derwinski, 8 Vet.App. 69, 77-78 (1995). ORDER Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for a right below the knee amputation is denied. ROBERT D. PHILIPP Member, Board of Veterans' Appeals