Citation Nr: 0007644 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 95-35 261 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999) for osteomyelitis of the right tibia and left shoulder based on VA hospitalization and treatment during 1990-91. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran serve don active duty from November 1964 to November 1970. The current appeal arose from a July 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The RO denied entitlement to compensation benefits pursuant to the criteria of 38 U.S.C.A. § 1151 for osteomyelitis of the right tibia and left shoulder based on VA hospitalization and treatment in 1990-91. The veteran presented testimony before a RO Hearing Officer in February 1996, a transcript of which has been associated with the claims file. In June 1997 the Board of Veterans' Appeals (Board) remanded the case to the RO for further development and adjudicatory actions. In August 1999 the RO affirmed the denial of entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for osteomyelitis of the right tibia and left shoulder based on VA hospitalization and treatment in 1990-91. The case has been returned to the Board for further appellate review. FINDING OF FACT The claim of entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for osteomyelitis of the right tibia and left shoulder based on VA hospitalization and treatment in 1990-91 is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim of entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for osteomyelitis of the right tibia and left shoulder based on VA hospitalization and treatment in 1990-91 is not well grounded. 38 U.S.C.A. § 1151 (West 1991 & Supp. 1999). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The veteran was admitted to the Brackenridge Hospital in Austin, Texas, on August 31, 1990, after having been involved in an automobile accident on the day of admission. He was crossing a highway when he was struck by an automobile in a hit and run type situation and sustained a closed head injury, bilateral open tibia fractures and a comminuted fracture of the left humeral head and neck. He underwent irrigation, debridement and reduction of the tibia fractures with the right tibia being placed in an external fixator and the left being splinted. The veteran returned to the operating room in approximately 7-10 days after the initial episode and underwent intermedullary nail fixation of both tibia fractures with removal of the external fixator on the right side. At the time the wounds were cleaned, there was no sign of infection and the veteran appeared to be doing well. The wounds to the right tibia and left shoulder subsequently started to have some mild drainage and cultures revealed a Group D enterococcus which was sensitive to Cipro as well as piperacillin. Because of recurrent drainage of the wounds he was taken to the operating room the week of the 8th of October where he underwent exploration of the wound of the shoulder. There he was found to have superficial stitch type abscesses in two large areas along the incision. These were debrided and closed. The right tibia wound was debrided and closed as well and during the first week he was kept on that regimen of oral Cipro and I.V. piperacillin. His wound in the shoulder was currently healing nicely and there was no sign of recurrent infection. His tibia infection was inspected and was doing well as well. The final diagnoses were closed head injury, bilateral open tibia fractures, and fracture dislocation of the left shoulder. He was discharged on October 19, 1990. The veteran was hospitalized by VA on October 18, 1990, for care requiring rehabilitation for a right tibia-fibula fracture and humeral head fixation status post left humeral dislocation. During the admission he was noted to have an open, infected nonhealing tibial fracture. He was discharged on November 21, 1990. The veteran was hospitalized by VA in February 1991 for treatment of infection with malunion of the right open tibia- fibula fracture suffered on August 31, 1990. He underwent incision and drainage with removal of two distal screws of internal fixation, right tibia. The veteran was hospitalized by VA from June to October 1991 for treatment of Grade 2 open tibia fracture with gross green drainage, grade 1 infected left shoulder with nonunion, and nonunion of left tibia, status post intermedullary rodding one year before. A July 1991 VA general medical examination of the veteran noted he had sustained left shoulder and right tibia open fractures. A January 1992 private medical certificate shows the veteran was diagnosed with nonunion with bony defect of the right tibia, nonunion of the left tibia, and pseudoarthrosis of the left humerus. In February 1992 the RO granted entitlement to a permanent and total disability rating for pension purposes effective October 30, 1990. The veteran filed a claim for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for osteomyelitis of the right tibia and left shoulder based on VA hospitalization and treatment in February 1993. The veteran presented testimony before the Hearing Officer at the RO in February 1996. A transcript of his testimony has been associated with the claims file. The veteran alleged that his infection, or osteomyelitis of his left shoulder and right tibia, was the result of improper VA hospitalization and treatment, thereby warranting entitlement to compensation benefits pursuant to the criteria of 38 U.S.C.A. § 1151. VA conducted a special orthopedic examination of the veteran in October 1997. The examiner recorded that the veteran had been involved in an accident in which he was struck by a motor vehicle as a pedestrian. Orthopedic injuries incurred at that time included bilateral open tibia fractures as well as an apparently closed left proximal humerus fracture. He underwent irrigation and debridement as well as intermedullary nailing of his bilateral tibia fractures at a private hospital. He also underwent open reduction, internal fixation of his left proximal humerus fracture. The VA examiner noted that the veteran's claims file was available and extensively reviewed. This revealed that during his private hospitalization, drainage from the left shoulder and right tibia wounds was noted. Cultures revealed this to be Group B enterococcus. On October 8, 1990, he was taken to the operating room where he underwent irrigation and debridement of his left shoulder and right tibial wounds. He was treated with oral ciprofloxacin. He was transferred to the VA Medical Center in San Antonio on October 17, 1990. A review of the VA records disclosed a diagnosis of osteomyelitis was made involving the right tibia shortly after his admission. He underwent a right posterolateral tibial bone grafting procedure. Ciprofloxacin treatment was apparently continued. He was treated as an outpatient for several months following discharge on December 21, 1990. In February he was readmitted and underwent incision and drainage of the right tibial wound. Records also indicated the veteran was subsequently seen at the private hospital in May 1991 and underwent incision and drainage of an abscess of the left upper arm. He was ultimately admitted to the VA hospital in Temple, Texas, in June 1991. Documents showed that he had purulent material extruding from the right tibial wound with culture positive for Pseudomonas and enterococcus. The left shoulder was also draining Pseudomonas. He subsequently underwent hardware removal from both his shoulder and right tibia. He required extensive irrigation and debridement procedures including subsequent bone grafting of right tibia as well as soft tissue procedures including skin grafting. He went on to nonunion of his left proximal humerus fracture. The veteran contended that his osteomyelitis of the right tibia and left shoulder were secondary to inadequate treatment by VA following his automobile accident. The examiner noted that specific question had been requested to be addressed regarding development. He noted that such questions would be addressed following examination of the veteran. An examination of the right lower extremity showed residuals of extensive soft tissue injury to the anterior compartment muscles. There was soft tissue loss and evidence of skin grafting. All of the wounds were benign at the time of examination. There was no erythema, drainage and minimal tenderness. Examination of the left shoulder showed extensive soft tissue loss. There was a healed surgical incision overlying this area. The veteran was unable to actively forward flex his shoulder. Abduction was to approximately 10 degrees. Passive abduction showed motion to 70 degrees. However, this motion was at the fracture site as there was an obvious nonunion. There was no tenderness to palpation over this area. There was no erythema or warmth. Radiographic studies of the right tibia showed an area of extensive bone loss at the junction of the proximal to middle third of the tibia. There was an area of tibial bone loss which measured 7 centimeters in this area. Bony effusion, however, to the fibula was noted, and this area appeared to be well consolidated. Left shoulder films were also obtained and were reviewed. There was seen an obvious nonunion of a proximal tibial shaft fracture. The examination diagnoses were status post right open tibia fracture complicated by osteomyelitis and malunion, and status post left proximal humerus fracture complicated by osteomyelitis as well as nonunion. The examiner recorded he was asked to address whether the osteomyelitis that developed following the veteran's automobile accident in August of 1990 and after private hospitalization followed by VA treatment was due to natural progress of the condition. He responded that review of the veteran's medical records from his private hospitalization indicated that infection in fact was present prior to the time of his transfer to the VA hospital. Although osteomyelitis had not been diagnosed, cultures were positive for enterococcus from wounds of the left shoulder and right tibia. This infection was more likely than not related to the veteran's initial injury and was related to the natural course of his injury. Open fractures, such as his bilateral tibia fractures, carried a high risk of developing osteomyelitis. The examiner noted this could develop despite appropriate treatment. It was more likely than not that the veteran's osteomyelitis in fact was present at the time of his transfer to the VA hospital in October 1990. His left proximal humerus osteomyelitis likely occurred secondarily from his other open injuries, according to the examiner. The examiner noted that the veteran's medical records clearly showed that osteomyelitis was in fact diagnosed shortly after his admission to the VA hospital in October 1990. It appeared that his osteomyelitis was in fact diagnosed in a timely fashion. Criteria Initially, the Board notes that during the pendency of this appeal pertinent laws and regulations related to claims filed pursuant to 38 U.S.C.A. § 1151 were revised. Formerly, 38 U.S.C.A. § 1151 provided that "[w]here any veteran suffers an injury, or an aggravation of an injury, as a result of hospitalization, medical or surgical treatment, or the pursuit of a course of vocational rehabilitation...awarded under any of the laws administered by the Secretary, or as the result of having submitted to an examination under any such law, and not the result of having submitted to an examination under any such law, and not the result of such veteran's own willful misconduct, and such injury or aggravation results in additional disability to or the death of such veteran, disability or death compensation...shall be awarded in the same manner as if such disability, aggravation or death were service-connected." 38 U.S.C.A. § 1151. In 1991, the United States Court of Appeals for Veterans Claims (Court) invalidated 38 C.F.R. § 3.358(c)(3), a portion of the regulation utilized in deciding claims under 38 U.S.C.A. § 1151. Gardner v. Derwinski, 1 Vet. App. 584 (1991), aff'd, Gardner v. Brown, 5 F.3rd 1456 (Fed. Cir. 1993), aff'd, Brown v. Gardner, 513 U.S. 115, 115 S.Ct. 552 (1994). The United States Supreme Court (Supreme Court) in affirming the Court's decision held that the statutory language of 38 U.S.C.A. § 1151 simply required a causal connection between VA hospitalization and additional disability, and that there need be no identification of "fault" on the part of VA. Brown, supra. The provisions of 38 C.F.R. § 3.358(c)(3), formerly required that in order for compensation to be payable under § 1151, there must be a showing that the additional disability was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instances of indicated fault on the part of VA. In March 1995, VA published amended regulations to conform to the Supreme Court decision. The revised provisions of 38 C.F.R. § 3.358 state that where it is determined that there is additional disability resulting from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization or medical treatment, compensation will be payable for such additional disability. 38 C.F.R. § 3.358. In particular, the amended regulation, 38 C.F.R. § 3.358(c)(3), now provides: 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. Consequences otherwise certain or intended to result from a treatment will not be considered uncertain or unintended solely because it had not been determined at the time consent was given whether that treatment would in fact be administered. Subsequently, the provisions of 38 U.S.C.A. § 1151 were amended, effective October 1, 1997, to include the requirement of fault, requiring that additional disability be the result of carelessness, negligence, lack of proper skill, error in judgment or similar fault on the part of VA in furnishing care, or an event not reasonably foreseeable. 38 U.S.C.A. § 1151. However, in a precedent opinion, the VA Office of General Counsel held that all claims for benefits under 38 U.S.C.A. § 1151, filed before October 1, 1997, must be adjudicated under the code provisions as they existed prior to the date. VAOPGCPREC 40-97. The Court has held that, for a service connection claim to be well grounded, there must be medical evidence of current disability, lay or medical evidence of incurrence or aggravation of a disease or injury in service, and medical evidence of a nexus (i.e., a link or a connection) between the injury or disease in service and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Similarly, a claim for 38 U.S.C.A. § 1151 benefits must be supported by medical evidence of a current disability and medical evidence that the current disability resulted from VA hospitalization, medical examination, or treatment. Although claims for 38 U.S.C.A. § 1151 benefits are not based upon actual service connection, there are similarities in their adjudication, including the requirement for a well grounded claim. Boeck v. Brown, 6 Vet. App. 14, 16-17 (1993) (holding that a veteran must submit evidence sufficient to well ground a claim for benefits under 38 U.S.C.A. § 1151); Contreras v. Brown, 5 Vet. App. 492, 495 (1993). Where the determinative issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well grounded claim. Lay assertions of medical causation cannot constitute evidence to render a claim well grounded; if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Derwinski, 5 Vet. App. 91, 93 (1993); Contreras, supra. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt doctrine in resolving each such issue shall be given to the appellant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis The Board initially notes that, in this case, the provisions of 38 U.S.C.A. § 1151, in effect prior to October 1, 1997, are more favorable to the claim, inasmuch as negligence need not be established in order for the appellant to prevail. However, inasmuch as the original claim brought under the provisions of 38 U.S.C.A. § 1151 was filed more than fours years before October 1991 (February 1993), the provisions of 38 U.S.C.A. § 1151 in effect from October 1, 1997 forward are inapplicable to the claim. VAOPGCPREC 40-97. As to the claim for compensation benefits for osteomyelitis of the right tibia and left shoulder pursuant to the provisions of 38 U.S.C.A. § 1151, the Board notes that under the law, in the context of this issue on appeal, where it is determined that there is disability resulting from VA treatment, compensation will be payable in the same manner as if such disability were service-connected. 38 U.S.C.A. § 1151; 38 C.F.R. § 3.358. Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the appellant to produce evidence that his claim is well grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). Because the veteran has failed to meet this burden, the Board finds that his claim of entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for osteomyelitis of the right tibia and left shoulder must be denied as not well grounded. In the case at hand, there is no medical evidence that the veteran's osteomyelitis of the right tibia and left shoulder resulted from or was aggravated by VA hospitalization, medical examination or treatment. There are no medical opinions in VA or private medical documentation of file linking osteomyelitis of the right tibia and left shoulder to VA hospitalization, medical examination, or treatment. In fact, the only opinion of record referable to this medical question is that obtained from a VA medical professional in October 1997 as requested by the Board in its June 1997 remand of the case to the RO for further development and adjudicative actions. In this regard, the VA examiner specifically pointed out that infection was already present while the veteran was privately hospitalized for treatment of his automobile accident injuries prior to commencement of any treatment by VA subsequent to his initial private inpatient care. The VA examiner further recorded that although osteomyelitis had not been diagnosed, cultures were positive for enterococcus from wounds of the left shoulder and right tibia. The infection was noted as more likely than not related to the veteran's initial injury and was related to the natural course of his injury. The VA examiner noted that open fractures, such as the veteran's bilateral tibial tibia fractures, carry a high risk of developing osteomyelitis. This could develop despite appropriate treatment. It was more likely than not that the veteran's osteomyelitis in fact was present at the time of his transfer to the VA hospital in October 1990. The examiner added that the veteran's left proximal humerus osteomyelitis likely occurred secondarily from his other open injuries. The examiner noted that the medical records clearly showed that osteomyelitis had in fact been diagnosed shortly after the veteran's admission to the VA hospital in October 1990. It appeared that his osteomyelitis had in fact been diagnosed in a timely fashion. The veteran has contended that infection or osteomyelitis of his right tibia and left shoulder occurred as a result of his VA treatment. Irrespective of the etiology the veteran may offer to account for his osteomyelitis of the right tibia and left shoulder, the Board notes that generally speaking, lay persons are not competent to offer evidence that requires medical knowledge. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration.) Neither is the Board competent to supplement the record with its own unsubstantiated medical conclusions as to whether the veteran's osteomyelitis of the right tibia and left shoulder are related to VA hospitalization, medical or surgical treatment, or examinations. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In the instant case, the issue of whether the VA hospitalization in late 1990, treatment or medical examinations thereafter caused or aggravated his osteomyelitis of the right tibia and left shoulder requires competent medical evidence. In the absence of competent medical evidence linking the veteran's osteomyelitis of the right tibia and left shoulder to VA hospitalization, medical or surgical treatment, or examinations, the Board must deny the veteran's claim as not well grounded. The Board further finds that the RO has advised the veteran of the evidence necessary to establish a well grounded claim, and he has not indicated the existence of any evidence that has not already been requested and/or obtained that would well ground his claim. McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps v. Brown, 9 Vet. App. 341, 344 (1996), aff'd sub nom. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). The Board finds that the RO was not under a duty to assist the veteran in developing facts pertinent to his claim for compensation benefits for osteomyelitis of the right tibia and left shoulder pursuant to the provisions of 38 U.S.C.A. § 1151 prior to the submission of a well grounded claim. Epps v. Gober, 126 F.3d 1464, 1468-69 (Fed. Cir. 1997). As the veteran's claim of entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for osteomyelitis of the right tibia and left shoulder based on VA hospitalization and treatment in 1990-91 is not well grounded, the doctrine of reasonable doubt is not applicable to his case. Although the Board considered and denied the veteran's claim on a ground different from that of the RO, which denied the claim on the merits, the veteran has not been prejudiced by the decision. In assuming that the claim was well grounded, the RO accorded the veteran greater consideration than his claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). ORDER The veteran not having submitted a well grounded claim of entitlement to compensation benefits pursuant to the criteria of 38 U.S.C.A. § 1151 for osteomyelitis of the right tibia and left shoulder based on VA treatment in 1990-91, the appeal is denied. RONALD R. BOSCH Member, Board of Veterans' Appeals